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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Eviston v. D.P.P. [2002] IESC 62 (31 July 2002) URL: http://www.bailii.org/ie/cases/IESC/2002/62.html Cite as: [2002] IESC 62, [2002] 3 IR 260, [2003] 1 ILRM 178

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Eviston v. D.P.P. [2002] IESC 62 (31st July, 2002)

Keane C.J.

Denham J.

Murphy J.

McGuinness J.

Geoghegan J.

88/01

BETWEEN:

APPLICANT/RESPONDENT

RESPONDENT/APPELLANT

[Judgments Delivered by Keane C.J., Murphy J. and McGuinness J., Denham J. agreed with Keane C.J., Geoghegan J. agreed with Keane C.J. and McGuinness J., Murphy J. dissenting.]

Judgment delivered the 31st day of July, 2002 by Keane C.J.

Introduction

These are proceedings brought by way of judicial review in which the applicant seeks to restrain the respondent (hereafter "the DPP" ) from taking any further steps in a criminal prosecution brought against the applicant and arising out of the death of one Tony Moynihan in a road accident on the 28th June 1998.
 

The facts, insofar as they are not in dispute, are as follows. The applicant was driving from Kilkenny to Killarney, where she lives, on that day in a motor car jointly owned by her husband and herself. Her three year old son was strapped into a baby seat in the rear of the car. Near a crossroad in Cullen, Co. Cork, her car was in collision with another car being driven by Mr. Tony Moynihan, who died as a result of the collision.

In a statement to the gardai, the applicant said that, in the course of her journey from Kilkenny to the scene of the accident, the back left wheel of her car was punctured in Cashel, Co. Tipperary. Two people in a bed and breakfast there changed the wheel for her. As she approached the area of the accident, her car suddenly and without warning pulled itself across to the right hand side of the road: she said that it was as if the steering "had taken on a life of its own". She said that the back left wheel and tyre of her car were in a deflated state after the accident.

The applicant obtained a report from a firm of consulting engineers and assessors, W.J. Rowley and Associates Limited, who examined the tyre and wheel. They confirmed that the tyre was in a deflated state. They said

"The tyre in question was in a deflated state and as it is a tubeless tyre it was obviously pushed off the rim. We note that the 1same wheel had given trouble to the owner in Cashel, where the tyre was replaced, and this may have been a case of the air slowly leaving the wheel, until, having reached a point of being under pressure, the car, in making a turn, caused the sealing between the tyre and the rim to open. This would have resulted in a quick let down of the remaining air in the wheel. Alternatively, it could have been a case of the car having been turned quickly on the road, at speed, where the sudden swerving would have caused the tyre to deflate, as it would have been under pressure already as a result of the air leaking out."

In a further report of the 25th August 1998, they said

"We are satisfied, therefore, that the car could have gone out of the driver's control when the wheel deflated completely. It would also have caused the car to vibrate and veer to one side, as the driver would not have had any warning of the sudden deflation that was about to take place."

The applicant's solicitor furnished these reports to the member in charge at Millstreet Garda Station, Co. Cork and in early December, 1998, he was informed by the gardaí that the DPP had decided not to direct the issue of any prosecution in the matter. That information was communicated to the applicant by her solicitor.

On the 16th December 1998, the father of the late Mr. Moynihan wrote as follows to the respondent

"I refer to the above accident in which my son Anthony Jnr. was fatally injured as a result of a collision between his vehicle and the vehicle being driven by Mrs. Eviston.

"Our whole family have been devastated by your decision not to bring charges of any description against Mrs. Eviston. No words could express the dreadful hurt and deep anguish which your inexplicable decision has caused my family.

"We never have nor do we now seek revenge or retribution on Mrs. Eviston, for whom we have great sympathy, but we are duty bound to protect the good name of our late son. The only way we can do this is to have him publicly exonerated of all blame for

this tragic accident and we believe that the only place where this can rightfully be done is in a court of law.

"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.

" I appeal to you as a matter of urgency to reconsider your decision and proffer charges of some description against Mrs. Eviston so that justice can be done and be seen to be done."

On the 23rd December 1998, a District Court summons was issued against the applicant charging her with dangerous driving causing the death of Tony Moynihan. On the 13th January, 1999, the applicant's solicitor wrote to the DPP seeking an explanation as to why the decision not to prosecute had been reversed. On the 15th January, 1999, a professional officer in the office of the DPP wrote to the applicant's solicitor as follows

"This office is precluded from giving reasons for decisions, whether those decisions are to prosecute, or not to prosecute.

"The decision not to prosecute in this matter was taken after a careful and comprehensive study of the garda file submitted here on the conclusion of the garda investigation into the matter.

"This office is conscious of the fact that, for various reasons, its decisions are effectively unappealable except in the limited context of judicial review. For this reason, among others, it has operated a system of internal appeal or review of decisions. It is regarded by the office as important that those having a personal or functional interest in the decisions should be at liberty to seek a review of any determination. Section 6 of the Prosecution of Offences Act 1974 has relevance in this regard.

"The decision of the professional officers in the first instance accordingly fell to be reviewed comprehensively, and at the highest level. Following that review, the fresh direction referred to by you was issued."

The applicant on the 22nd March, 1999 was given leave by the High Court to apply by way of judicial review for an injunction restraining the DPP from taking any further steps in the prosecution of the proceedings. The two grounds in respect of which leave was granted were 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 inquiries, 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 a decision not to prosecute (such decision having been made following the conclusion of garda inquiries 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, grounded on an affidavit of Donal Murray, an officer in the DPP's office. In that affidavit, Mr. Murray referred to the summary of the review procedure of the office of the DPP set out in his annual report. A further affidavit was filed by Mr. Murray in which he said that the office did not receive any representation, either oral or written, by or on behalf of the Minister for Justice, Equality and Law Reform in connection with the matter.

The substantive hearing of the application came on in the High Court before Kearns J. In a written judgment, delivered on the 26th January, 2001, the learned High Court judge granted the relief sought by the applicant. It also appears from the judgment (although not from the order of the court) that, during the course of the hearing in the High Court, leave was given to the applicant to argue two additional grounds, i.e., :-

"(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 inquiries, 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 inquiries and, in the premise, the respondent has acted ultra vires and in breach of the applicant's right to fair procedures."

The High Court Judgment.

In his judgment, the trial judge noted that it had not been suggested that any new facts or materials had come to light or that some new witness had become available when the DPP reversed his earlier decision not to prosecute. Describing that decision as "the formation of a contradictory view on the same material", the trial judge concluded

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

Applying the test for irrationality laid down by Henchy J speaking for this court in The State (Keegan) -v- Stardust Victims Compensation Tribunal [1986] IR 642, he was of the view that no sensible person who applied his mind to the matters to be decided by the DPP could have arrived at such a decision.

The trial judge was satisfied that, on that ground alone, the applicant was entitled to the relief which he sought. However, he said that he would also be prepared to decide the case in her favour on another ground, i.e., that the DPP had failed to comply with his own review guidelines as set out in his annual report. In particular, the trial judge referred to the statement in the report that, if a person seeking the review advances a reasonable basis for the request it would be granted "unless that particular factor had already been exhaustively considered". He said that in the present case consideration of the particular factor identified in the request for the review - i.e., the distress suffered by the late Mr. Moynihan's family - must be taken to have already been exhaustively considered by the respondent.

The trial judge also referred to the general policy principles to which the DPP is to have regard in considering whether or not to bring a prosecution, which were also set out in the annual report. The first of these was the requirement to have regard in any case to "the evidential test" i.e., was there enough prima facie evidence and was it credible and reliable. The second was "the public interest test", under which, if the first test was satisfied, a prosecution would normally take place unless there were public interest factors against the initiation of a prosecution which would outweigh those in favour of a prosecution. The trail judge said that, if the evidential test had not been met in the present case, nothing arose thereafter to change that situation. If the case failed the "public interest test", then, in his view, the public interest test on a review demanded that the citizen who had been told that no prosecution would be brought should not thereafter be exposed to prosecution "without good and sufficient cause". There was no indication in this case that any such consideration was taken into account and, if it had, it could only have reinforced the original decision not to prosecute. The trial judge was, accordingly, of the view that the applicant was also entitled to relief on the ground that he had not complied with policy principles which he himself had espoused.

The trial judge rejected, however, a further submission on behalf of the applicant that the DPP was precluded by the terms of s.6 of the Prosecution of Offences Act, 1974, (hereafter "the 1974 Act") from considering the representation made to him by Mr. Moynihan.

Submissions of the Parties.

On behalf of the DPP, Mr. Dermot Gleeson SC submitted that the case had been decided in the High Court on grounds in respect of which leave had never been granted, either originally or in the revised form allowed by the trial judge in the course of the hearing. Those grounds were that the decision of the DPP to initiate a prosecution was so unreasonable as to require intervention by the court and was in contravention of the policy he himself had adopted.

Mr. Gleeson submitted that, even assuming the High Court was entitled to decide the matter on grounds in respect of which leave had never been granted, the decision proceeded on an erroneous view of the law. The terms of the 1974 Act did not in any way preclude the DPP from reviewing a decision he had earlier taken either to prosecute or not to prosecute. Although it was not suggested in the present case that new evidence had come to light, his undoubted jurisdiction to review an earlier decision not to prosecute could not, in law, be confined to cases in which new evidence came to light.

Mr. Gleeson submitted that the trial judge was in error in supposing, in the first place, that the materials before the DPP when he made his decisions in this case were solely those furnished to him by the applicant in the form of her written statement and the engineer's reports. It has been held by this court in The State (McCormack) -v- Curran [1987] ILRM 225 that the DPP, in deciding whether or not to initiate a prosecution, was not confined to assessing the probative value of the evidence laid before him: there were other factors which it might be appropriate and proper for him to take into consideration. It had also been held by the court in H -v- DPP [1994] 2 IR 589 that the DPP was not in general obliged to give reasons for a decision not to prosecute. Mr. Gleeson submitted that, while those authorities related to a decision not to prosecute, the same considerations were applicable to a decision to prosecute. It was clear from the authorities that the only circumstances in which the Superior Courts were entitled to review the discretion the DPP enjoyed in this area was where it could be demonstrated that his decision has been arrived at in bad faith or as the result of an improper motive or an improper policy. None of those factors was present in this case.

Mr. Gleeson further submitted that the adoption by the DPP of a policy of reviewing decisions by him to prosecute or not to prosecute was in the public interest: the consequences for citizens, whether they were the victims of crime or suspects, of his decisions could be extremely serious and far reaching and his adoption of a review procedure, such as had been operated in the present case, was no more than an acknowledgement that decisions by him could be erroneous and that as there was no appeal from them, they should be capable of being reversed.

Mr. Gleeson further submitted that the trial judge had misunderstood the procedures provided for in the DPP's annual report. In initiating a review of an earlier decision not to prosecute, he was not confined to cases in which specific reasons had been advanced for the review. While he reserved the right to refuse such requests where he was satisfied that there was no reasonable basis for them, it did not follow that he was precluded from initiating a review even where no specific reason had been advanced by the party requesting the review.

On behalf of the applicant, Mr Patrick Horgan SC submitted that, in the present case, the actions of the DPP in initiating a prosecution where the applicant had already been informed that she would not be prosecuted in circumstances were it was not alleged that anything new had come to light was a clear violation of the applicant's right to natural and constitutional justice and that, accordingly, the High Court was correct in concluding that the further prosecution should be stayed.

Mr. Horgan further submitted that the authorities clearly established that the courts would intervene to restrain the DPP where the continuance of a prosecution would violate the rights of a citizen, e.g., in DPP -v- Byrne [1994] 2 IR 236 (the right to a trial with due expedition) McMahon -v- Leahy [1984] IR 525 (the citizen's right to equality of treatment) and The State (Healy) -v- O'Donoghue [1976] IR 325 (the citizen's right to legal representation in a criminal prosecution). It was also clear from the decision of Finlay P, as he then was, in The State (O'Callaghan) -v- O'hUdaigh [1977] IR 42 that the respondent could be restrained where he was acting oppressively in the exercise of his prosecutorial function.

Mr. Horgan further submitted that, as no one had pointed to a scintilla of evidence which had come to light and which would have justified the respondent in departing from his original decision not to prosecute, it followed inevitably that the second decision was unreasonable and should be set aside. He cited in this context the decision of this court in Farrell -v- Attorney General [1998] 1 IR 2.

The Review Procedure of the Respondent.

The review procedure adopted by the DPP, which he claims to have operated in this case, is set out as follows in s.10 of the Annual Report, 1998:

"10.1 The Director of Public Prosecution's Office is acutely conscious of the fact that, because of constitutional and other considerations, its decisions are effectively unappealable except in the limited context of judicial review. For this reason, among others, it has operated a system of internal appeal or review of its decisions. It is a valuable system, not least from the view point of the office itself, constituting a system of quality control.

10.2 If the Garda Síochána (through the Commissioner's office) requests a review of a decision given by the office, that request will be granted. The request need not point to any new fact not included in the files submitted but it would usually give reasons, however general, as to why the decision was considered to be erroneous or required fresh consideration. The Garda Síochána has been reminded by personnel of the office on many occasions of the availability on request of reviews of decisions made by it.

10.3 A similar procedure would be applied if another official reporting agency were to request a review of a decision.

10.4 Requests 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 had already been exhaustively considered. Several reviews had been conducted as a result of such requests.

10.5 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 in 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 officer 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 judgement call involved had usually been a very fine one."

The applicable law.

The office of the DPP was established by the 1974 Act. Section 3 provided that the DPP was to perform inter alia all the functions hitherto capable of being performed in relation to criminal matters by the Attorney General. There were certain exceptions to the vesting in the DPP of the Attorney General's functions in this area which are not relevant. Section 2(5) provided that the DPP was to be independent in the performance of his functions.

Section 6 of the Act prohibits the making of communications to the DPP in relation to criminal proceedings in these terms:

"1(a) Subject to the provisions of this section it shall not be lawful to communicate with the Director or an officer of the Director, the acting Director .... 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.

2(b) If a person referred to in paragraph (a) of this subsection becomes of opinion that a communication is in breach of that paragraph, it shall be the duty of the person not to entertain the communication further.

2(a) This section does not apply to -

(i) communications made by a person who is the defendant or a complainant in criminal proceedings or believes that he is likely to be a defendant in criminal proceedings or

(ii) communications made by a person involved in the matter either personally or as legal or medical advisor to a person involved in the matter or as a social worker or a member of the family of a person involved in the matter."

The effect of the 1974 Act was thus to vest in the DPP the function of prosecuting all crimes and offences in courts other than those of summary jurisdiction in the name of the people. It was clearly envisaged by the Oireachtas that the DPP, in performing those functions, would exercise the same role as had historically been performed by the Attorney General. In contrast to the systems in many civil law jurisdictions, the courts play no role in the prosecution of offences and both the decision to initiate a prosecution and the subsequent conduct of that prosecution are functions exclusively assigned (with limited exceptions) to the DPP under the Constitution and the relevant statutory provisions.

I would, with respect, question whether the learned High Court judge was altogether correct in describing these functions as "quasi judicial", at least as that expression has generally been understood. It is usually applied to executive functions which involve the exercise of a discretion but require at least part of the decision making process to be conducted in a judicial manner. That would normally involve observance of the two central maxims of natural justice, audi alterem partem and nemo iudex in sua causa. Those canons are of limited, if any, application to the DPP who, like other litigants, initiates and conducts a prosecution but does not ultimately decide any of the issues himself and, specifically, has no role in determining the guilt or innocence of an accused person.

Undoubtedly, the DPP remains subject to the Constitution and the law in the exercise of his functions and it has been made clear in decisions of this court that, while the nature of his role renders him immune to the judicial review process to a greater extent than is normally the case with quasi judicial tribunals properly so described, he will be restrained by the courts where he acts otherwise than in accordance with the Constitution and the law.

In the case of the express power conferred on the respondent (and formerly on the Attorney General) by the Offences Against the State Act 1939 to certify in an individual case that, in his opinion, the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order (thereby resulting in a trial before a Special Criminal Court), it has been held in the High Court on two occasions that the exercise of this power is not reviewable by the courts under any circumstances: see Savage & Anor -v- DPP [1982] ILRM 385 and Judge -v- DPP [1984] ILRM 224. In In Re Article 26 -v- The Emergency Powers Bill 1976 [1977] IR 159, this court found that it was not necessary to express an opinion on the circumstances, if any, in which the courts would be entitled to review any such certificate. In the two High Court judgments referred to, the certificate was treated as incapable of review on the ground that the revealing in open court of the information on which the DPP had reached his opinion would be "a security impossibility". Those decisions may need reconsideration at some stage, since they do not address the issue as to whether the requirement under Article 34.1 that justice be administered in public has the effect of precluding the court in all circumstances from conducting any inquiry into whether an accused person has been wrongfully deprived of his right to a trial by jury guaranteed under Article 38.5. They may also need reconsideration in the light of the later decision of this court in The State (McCormack) -v- Curran and Ors. [1987] ILRM 225.

The facts in that case were somewhat unusual but, since, unlike the High Court decisions of Savage and Judge, it was directly concerned with a decision of the DPP not to institute a prosecution, it requires careful consideration.

It arose out of the enactment of the Criminal Law (Jurisdiction) Act 1976 which provided that, where a person had been charged with an extra territorial offence in Northern Ireland, he could elect to be tried in the Republic, provided that a judge of the High Court or the court of trial was satisfied that a warrant for the arrest of the accused person had been issued in the Republic for a corresponding offence. 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 also constituted offences under Irish law and he elected for trial in the Republic. However, the DPP decided not to require the issue of a warrant for the arrest and charge of the prosecutor in the Republic and the latter obtained conditional orders of certiorari and mandamus in respect of that decision. The High Court, on cause being shown, discharged the conditional orders so obtained and its decision was unanimously upheld by this court on appeal.

It had been submitted on behalf of the DPP that his decisions were not, as a matter of public policy, ever reviewable by a court. In the course of his judgment (with which Henchy, Griffin and Hederman JJ agreed) Finlay CJ said

"In regard to the DPP I reject .... the submission that he has only got a discretion as to whether to prosecute or not to prosecute in any particular case, related exclusively related 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 reached the decision mala fide or influence 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 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 appellant within this jurisdiction and that that being so 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 was based."

In the course of his judgment in the same case (with which Henchy, Griffin and Hederman JJ also agreed)) Walsh J said

" 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 can be of the nature of orders which attract certiorari. A failure to perform his statutory duties could however, be the subject of mandamus"

As to the facts of the particular case, the learned judge said

"There is no evidence in the present case from which it could be reasonably inferred that either the DPP or Chief Superintendent Curran had abdicated their functions or had been improperly motivated"

The extent to which the courts can review a decision of the DPP not to prosecute in a particular case was the subject of further consideration by this court in H -v- The Director of Public Prosecutions and Anor. In that case, the applicant had brought a private prosecution against her husband and his brother charging them with having committed sexual offences against her son. She then instituted proceedings by way of judicial review seeking inter alia an order of mandamus compelling the DPP either to institute a prosecution against her husband and his brother or, alternatively, to give her reasons why he had not done so. The High Court having dismissed the application of the applicant, she appealed to this court which unanimously upheld the decision of the High Court. In the course of his judgment, O'Flaherty J, having found that this was not an appropriate case in which to order the DPP to bring a prosecution, said:

"I would also uphold the submissions made on behalf of the DPP 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."

He went on to point out that the decision of the High Court in International Fishing Vessels Limited -v- The Minister for the Marine [1989] IR 149 - that the Minister was obliged to give reasons for granting or not granting a fishing licence - was distinguishable, because the Minister's decision was reviewable by the court and, accordingly, a refusal to give reasons for his decision placed a serious obstacle in the way of the exercise of that right of review. The learned judge added:

"It is clear from the decision in The State (McCormack) -v- Curran that the discretion of the Director of Public Prosecutions is reviewable only in certain circumstances as set out by Finlay CJ at p.237 of the report... It would seem then that as the duty to give reasons stems from a need to facilitate full judicial review, the limited intervention available in the context of the decisions of the Director obviates the necessity to disclose reasons."

In the course of her judgment, Denham J, having referred to the judgments of Finlay CJ and Walsh J in The State (McCormack) -v- Curran said

"Applying the test of the Chief Justice 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 has been made out against the respondents. The unsubstantiated statement of belief by the appellant not denied by the Director of Public Prosecution 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 the reasons for it nor the sources of the information upon which it is based.

"Applying the reasoning in the concurring judgment of Walsh J in The State (McCormack) -v- Curran it is clear that mandamus would not lie in this case as there is nothing before this court from which it could be reasonably inferred that the Director of Public Prosecution's decision was perverse, or inspired by improper motives, or that he had abdicated his functions."

It is an important feature of the decisions in The State (McCormack) -v- Curran and H -v- Director of Public Prosecutions that, in each case, the court was concerned with (a) a decision not to prosecute in a particular case and (b) a challenge to the merits of that decision. The decisions, accordingly, go no further than saying that the courts will not interfere with the decision of the DPP not to prosecute where

(a) no prima facie case of mala fides has been made out against the DPP ;

(b) there is no evidence from which it could be inferred that he has abdicated his functions or been improperly motivated; and

(c) the facts of the case do not exclude the reasonable possibility of a proper and valid decision of the DPP not to prosecute the person concerned.

They also make it clear that, in such circumstances, the DPP cannot be called upon to explain his decision or to give the reasons for it or the sources of the information upon which it is based.

Neither the High Court nor this court, however, were directly concerned in those cases with the question as to whether the DPP can be restrained from continuing with a prosecution where he has previously intimated to the putative defendant that he did not propose to institute a prosecution and where, in the result, in the absence of any established change of circumstances, the reversal of his earlier decision could be regarded as a breach of the fair procedures which, as it is urged, he is obliged to observe in the discharge of his constitutional and legal functions.

It cannot be said, in my view, that to treat the DPP as being subject to such an obligation is to disregard the fact that, in carrying out the duties of his office, he is not acting in a quasi judicial capacity and that, in particular, the classic maxims of audi alterm partem and nemo iudex in sua causa do not apply to him. The modern jurisprudence of this court has established beyond argument that the requirements of natural justice in particular cases may extend beyond the observance of those traditional criteria.

Thus, in The State (O'Callaghan) -v- O'hUdhaigh, the Central Criminal Court had ruled that, in the case of an indictment containing ten counts, only one count was properly before the court. The DPP thereupon entered a nolle prosequi in regard to all the counts. The prosecutor was then re-arrested and charged in the District Court with the same offences. In making absolute conditional orders of prohibition to prevent the District Court proceeding with the renewed charges, Finlay P, as he then was, said that

"If the contention of the respondent is correct, the prosecutor, having undergone that form of trial (and a 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 Prosecution. 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 interests 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 case of an inferior court.

"It seems to me that so to interpret the provisions of s.12 of [The Criminal Justice (Administration) Act 1924] as to create such an extraordinary imbalance between the rights and powers of the prosecution and those of the accused respectively, and to give the Director such a relative independence from the decision of the court in any trial, would be to concur in a proposition of law which signally failed to import fairness and fair procedures."

I am satisfied that the decision of the learned President in that case - that the DPP is not exempt in the performance of his statutory functions from the general constitutional requirements of fairness and fair procedures - was correct in point of law. It also seems to me to follow inexorably from that proposition that where, as here, the Director avails of his undoubted right not to give any reasons for a decision by him to reverse a previous decision not to prosecute, but concedes that there has been no change of circumstances, his decision is, as a matter of law, prima facie reviewable on the ground that there has been a breach of fair procedures. Whether such a breach has been established must, of course, depend entirely on the circumstances of the particular case.

It is not suggested in this case that the DPP has acted mala fide or that he was influenced by an improper motive or policy in reversing his original decision not to prosecute the applicant. The contention on her behalf is that, having arrived at a decision not to prosecute her and communicated that decision to her, he could not as a matter of law subsequently reverse that decision, save where new factors had come to light which were not present when he made his original decision.

It is undoubtedly the law that the DPP is entitled to review an earlier decision by him not to prosecute and to substitute for the earlier decision a decision to prosecute, at least in a case were he has not already communicated his earlier decision to the putative accused. Thus, having initially decided not to prosecute and so informed one of his officers who had given him advice on the matter, he may subsequently on reflection come to a different view and decide to prosecute. If, for whatever reason, it became public knowledge that, in such a case, the DPP had reversed an earlier decision not to prosecute, it would be unthinkable that his later decision should be reviewable on that ground alone. Again, his position can be contrasted with that of a court or quasi judicial tribunal which is normally functus officio once the decision in a particular case has been pronounced.

It follows that the DPP is entitled to review an earlier decision made by him not to prosecute and to arrive at a different decision. Nor is he obliged in either instance to give reasons for his decision. The DPP was thus entitled, as a matter of policy, to adopt a procedure of reviewing earlier decisions made by him. Clearly, it could not be suggested that such a policy was in any sense improper : on the contrary, given the consequences for both the victims of crime and those suspected of having committed crime of a decision to prosecute or not to prosecute, such a policy could only be regarded as being in the public interest, since, in the absence of an appeal procedure, it provides at least some opportunity to the DPP of reversing decisions which, on further consideration, appear erroneous.

Nor can such a review be regarded as legally flawed because it is initiated, as happened here, by a request for a reconsideration of the decision by a member of the victim's family. Once it is accepted that the DPP is entitled to review and reverse an earlier decision he has made, it is immaterial that the review procedure is activated by a request such as was made in this case or some other factor. It is clear that the prohibition on communications with the DPP contained in s.6 is designed to outlaw attempts to influence the DPP not to bring prosecutions or to withdraw prosecutions already brought. A communication such as that made by Mr. Moynihan to the DPP was not prohibited by the 1974 Act and he was entitled to respond to it by initiating the review which led to the reversal of his original decision.

Conclusions

The applicant having furnished the DPP with her statement and the engineer's reports and having been told that no prosecution would be initiated, it was inevitable that the decision of the DPP to prosecute following the representation from Mr. Moynihan would cause her anxiety and stress. But this case cannot be determined by the sympathy one is bound to feel for the applicant. The sole issue for this court to determine is whether the High Court judge was correct in holding that the DPP could not, as a matter of law, in the circumstances of this case, reverse his earlier decision.

Applying the legal principles which I have already set out, I am satisfied that he was wrong in holding that the decision was so irrational as to require its being set aside by the High Court. Leaving aside entirely the fact that this was not a ground on which, at any stage, leave to proceed by way of judicial review had been granted, it was not a conclusion which could have been reached as a matter of law in this case.

In the first place, the trial judge appears to have assumed that the only factors which the DPP did, or indeed could, take into account were the written statement of the applicant, the engineer's reports and the representation made to him by Mr. Moynihan. Since the DPP is not obliged to give any reasons for either of the decisions under consideration, neither the High Court nor this court is in a position to say whether those were the only materials before him or the only factors he took into account when he arrived at these decisions. In the result, the precondition which must be present before the principle in The State (Keegan) -v- Stardust Compensation Tribunal can be invoked, i.e., that on the materials before it the body concerned could not reasonably have so decided, has never been met.

In the second place, for the reasons already identified, the DPP, as a matter of law, is entitled to reverse a decision already arrived at not to prosecute, even in the absence of new evidence or different factors, where he is of the view that his original decision was erroneous.

The trial judge was also, in my view, mistaken in concluding that the DPP had failed to comply with his own review guidelines as set out in the Annual Report. Again, he appears to have proceeded on the assumption that, unless there was either new evidence or different factors brought to the attention of the DPP, he could not, as a matter of law, arrive at a different decision. It is to be assumed that in this, as in any other case, the DPP, in determining whether to initiate a prosecution in the first instance, had regard to the two tests referred to in his annual report, i.e., the "evidence" and "public interest" tests, and concluded that a prosecution should not be initiated. But that would not preclude him, once a review had been initiated, from arriving at a different conclusion on the same materials.

As I have already said, the anxiety and stress which must certainly have been caused to the applicant by the initiating of the prosecution in the present case, following the communication to her of a decision by the DPP not to prosecute, would not, of itself, afford her legal grounds for an injunction restraining the continuance of the prosecution. Moreover, assuming that the doctrine of equitable estoppel applies in a case of this nature, one could not say that there followed in the legal sense some detriment to the applicant which would render inequitable the continuance of the prosecution, since her ability to defend the proceedings had not in any way been impaired. Different considerations would have arisen if, for example, on receipt of the DPP's first decision, the wheel and tyre had been disposed of. In such a case, one could conceive of a prosecution being restrained either on the basis of an equitable estoppel having arisen or since the applicant could not be deprived of her constitutional right to a trial in due course of law because of the loss of evidence resulting from the DPP's actions.

I am also satisfied that the doctrine of legitimate expectations could never have been successfully invoked in this case. Deep and natural disappointment may well be the result of another person's action, as in this case, but that cannot of itself justify the invocation of this doctrine. In general terms, there must at least have been a legitimately founded expectation that a particular procedure would be followed and an alteration in that procedure without prior notice to the person concerned. That is not what happened in this case.

There remains the question as to whether the DPP should be restrained from proceeding with the present prosecution on the ground that his decision is fatally vitiated by a want of fair procedures.

It was undoubtedly open to the DPP in this case, as in any other case, to review his earlier decision and to arrive at a different conclusion, even in the absence of any new evidence or any change of circumstances, other than the intervention of the family of the deceased. The distinguishing feature of this case is the communication by the DPP of a decision not to prosecute to the person concerned, followed by a reversal of that decision without any change of circumstance or any new evidence having come to light. In the light of the legal principles which I have earlier outlined, I am satisfied that the decision of the DPP was prima facie reviewable by the High Court on the ground that fair procedures had not been observed.

Whether, in the particular circumstances of this case, fair procedures were not in fact observed is a difficult question. As I have emphasised more than once in this judgment, stress and anxiety to which the presumably innocent citizen is subjected when he or she becomes the accused in a criminal process could not conceivably be, of itself, a sufficient justification for interfering with the undoubted prosecutorial discretion of the DPP. It is, however, beyond argument that the degree of such stress and anxiety to which the applicant was subjected was exacerbated by the decision of the DPP to activate the review procedure in circumstances where he had already informed the applicant that she would not be prosecuted and had not given her the slightest intimation that this was a decision which could be subjected to review in accordance with the procedures in his office. If those review procedures formed part of the law of the land, then, the applicant would be assumed, however artificially, to have been aware of that law. The review procedures of the DPP, however, are not part of the law: they constitute a legitimate, and indeed salutary, system of safeguards to ensure that errors of judgment in his department which are capable of correction are ultimately corrected. No reason has been advanced, presumably because none existed, as to why the applicant was not informed that the decision of the DPP not to institute a prosecution might in fact be reviewed at a later stage. In the result, she was subjected to a further and entirely unnecessary layer of anxiety and stress. Viewing the matter objectively, and leaving aside every element of sympathy for the applicant, I am forced to the conclusion that in circumstances where the DPP candidly acknowledges that there was no new evidence before him when the decision was reviewed, the applicant was not afforded the fair procedures to which, in all the circumstances, she was entitled. It follows that the requirements of the Constitution and the law will not be upheld if the appeal of the DPP in the present case were to succeed.

I would, accordingly, dismiss the appeal and affirm the order of the High Court.

88/01

KEANE CJ

DENHAM J

MURPHY J

MCGUINNESS J

GEOGHEGAN J

BETWEEN:

APPLICANT/RESPONDENT

RESPONDENT/APPELLANT

JUDGMENT OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 31^ST DAY OF JULY, 2002

On the 26th January, 2001, Kearns J made an order restraining the Director of Public Prosecutions from taking any further steps in the prosecution of proceedings against the above named Linda Eviston (Mrs Eviston) arising out of a road traffic accident which it is alleged occurred on the 28th June, 1998, near Mallow in the County of Cork. The matter now comes before this Court by way of appeal from that order.

The accident of the 28th June, 1998, was indeed a tragic one. It resulted in the death of Mr Tony Monynihan. By notice dated the 1st July, 1998, Mrs Eviston was advised by the gardaí at Mill Street, Cork, that a prosecution would be instituted against her for dangerous driving. Mrs Eviston at all times admitted that she was the driver of the motor car involved in the accident. She made a statement to the gardaí on the 3rd September, 1998. In that she explained her car had been punctured some hours before the accident and the wheel changed by helpful bystanders. It was the belief of Mrs Eviston - and in this belief she was supported  by the opinion of Mr WJ Rowley, consulting motor engineer and assessor - that the very regrettable accident was due to a defect in the wheel or tyre and not any negligence or want of care on the part of the driver.

In early December, 1998, Mrs Eviston's solicitors were informed that the DPP had decided not to direct the issue of a prosecution in the matter. On the 16th December, 1998, Anthony Moynihan, the father of victim, wrote to the Director appealing to him to reconsider his decision. The DPP did review his file. It is common case that there he had no additional information available to him since his original decision but he decided, nevertheless, following the review, to direct that Mrs Eviston be prosecuted in relation to the incident.

On the 22nd March, 1999, Mrs Eviston sought and obtained leave to apply by way of application for judicial review for an injunction restraining the DPP from prosecuting the proceedings on a variety of grounds but the only grounds allowed were those specified at E(I) and (VI)(1). Those permitted grounds were as follows:-

"E(I) That the decision of the respondent not to prosecute the applicant was, once communicated to the applicant following the admitted completion of garda inquiries, a final and conclusive decision and that the respondent was acting ultra vires, contrary to law and in breach of the applicant's constitutional rights in purporting to reverse it.

(VI)(1) That if (which is denied) the respondent has power to review and reverse a decision not to prosecute (such decision having been made following the conclusion of the garda inquiries and published and communicated to the applicant) that the respondent was guilty of the a breach of the applicant's right to fair procedures and constitutional justice in failing to: (i) To advise/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."

In the hearing of the application the Court gave leave to extend the grounds by inclusion of the following:-

"(C) 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 inquiries, and, in the premises, the respondent has acted ultra vires and in breach of the applicant's right to fair procedures.

(D) 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 inquiries and, in the premises, the respondent has acted ultra vires and in breach of the applicant's right to fair procedures."

Counsel for the DPP drew attention to the three phases of the decision making process, first, the decision not to prosecute. Secondly, the decision to undertake a review and, thirdly, the decision (the third decision) to prosecute.

Whilst the DPP is not required - and indeed it would be undesirable that he should be required - to give information as to the basis on which decisions are taken by him, he did  make it clear that in reaching the third decision the information available to him was no different from that on which his first decision had been made. It is clear from his judgment that Mr Justice Kearns regarded such a volte face as necessarily being "arbitrary and perverse". That was not in fact a ground on which leave had been given either originally or by way of amendment. Accordingly it was not open to the learned Judge, in my view, to determine the matter on that basis. In any event I would disagree that a change of mind, however dramatic, based on the same evidence is necessarily either arbitrary or perverse. If the Director concluded one day that a prosecution should not be brought and made an internal record of that decision and, perhaps, communicated the decision to his own officers could it be said that his second thoughts on the same material - however dramatic the consequences - were arbitrary, perverse or irrational? The most distinguished judges would be gravely embarrassed by the assertion that the willingness to reconsider an opinion expressed orally or in writing and to substitute a diametrically opposite judgment on the same material would be perverse.

The difficulty in this case is not that the DPP changed his mind but that he did so first, having made it known to Mrs Eviston that he would not prosecute and, secondly, within some six days of the receipt of a letter from Mr Anthony Moynihan, the father of the victim seeking the review and adverting to the contact which he had already made with the Minister for Justice in relation to the matter. I can readily understand that Mrs Eviston would in these circumstances feel that the decision to prosecute was unjust. The problem, as I see it, is to convert this sense of injustice into an enforceable legal right.

It cannot be said that the Director is estopped from prosecuting Mrs Eviston. Apart from any other consideration, there is no suggestion that she altered her position for the worse as a  result of being informed in the first instance that she would not be prosecuted. Again, I cannot see any basis on which the somewhat ill defined doctrine of legitimate expectations can be invoked. If the Director is entitled as a matter of law to change his mind - and I am satisfied that he is - I do not see how any belief which Mrs Eviston may have to the contrary could alter the law in that respect. Mr Patrick Horgan, SC, on behalf of Mrs Eviston, contended that the many decisions of this Court in which criminal proceedings were stayed as a result of the failure of the DPP (or the AG) to prosecute with expedition established the existence, or presupposed the existence, of a right of security of the person which, as he said, might be called "a right to peace of mind". Mr Horgan argued that the revival of the prosecution in the present case would be as much an infringement of that right as an unjustified delay in prosecution. Whilst that argument is ingenious and attractive, it is not, in my view, sound in law. The duty on the State and its various agencies to prosecute criminal proceedings expeditiously can be inferred readily from the provisions of Article 38(1) of the Constitution. The right to peace of mind has yet to be enumerated and, if it were, doubts might well arise as to the constitutionality of s.2 of the Criminal Justice Act, 1993. A person who has received a suspended sentence and in respect of whom the DPP appeals to the Court of Criminal Appeal on the grounds that the sentence was unduly lenient would appear to have as good grounds for complaint that his or her peace of mind was disrupted as that which Mrs Eviston has in the present case. I would respectfully disagree with the proposition that the decision of the DPP is reviewable for want of fair procedures. I am convinced that the DPP has the right, and indeed the duty, in a proper case to alter his decision to prosecute or not to prosecute in a particular case and that notwithstanding the fact that his original decision was made public. The fact that the change of mind may have a positive or negative result for an accused would not impinge on the validity of the decision nor impose any novel obligation on the Director to justify it where, as here, the accused is not embarrassed in his or her defence. Whilst I believe that Mr Justice Kearns was incorrect on the particular grounds on which he granted the relief sought and I am unconvinced by the more extensive argument made in this Court in support of his order, I confess to a sense of relief that my views have not prevailed. I believe that the prosecution of Mrs Eviston at this stage and in the particular circumstances would be understood, incorrectly but nevertheless widely, as resulting from an interference with the judicial process insofar as the same is properly said to include the investigation of the alleged crime and the decision to prosecute the same.

88/01

Keane, C.J.

Denham, J.

Murphy, J.

McGuinness, J.

Geoghegan, J.

BETWEEN

APPLICANT/RESPONDENT

RESPONDENT/APPELLANT

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.

ar Eviston -v- DPP 24th May 02