Supreme Court dismisses DPP appeal, ruling failure to inform applicant of review right violated fair procedures.

THE SUPREME COURT

Keane C.J.

Denham J.

Murphy J.

McGuinness J.

Geoghegan J.

88/01

BETWEEN:

LINDA EVISTON

APPLICANT/RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/APPELLANT

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 same 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.