Supreme Court dismisses appeal against DPP's decision to prosecute after initially deciding not to. The court rejects claims of legitimate expectations and right to peace of mind.

THE SUPREME COURT

88/01

KEANE CJ

DENHAM J

MURPHY J

MCGUINNESS J

GEOGHEGAN J

BETWEEN:

LINDA EVISTON

APPLICANT/RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/APPELLANT

JUDGMENT OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 31ST 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.