Supreme Court allows appeal against DPP's decision to prosecute after previously deciding not to prosecute.

THE SUPREME COURT

[Appeal No: 105/2008]

Denham J.

Fennelly J.

Macken J.

Between/

John Carlin

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

Judgment delivered the 16th day of March, 2010 by Denham J.

1. I agree with the judgment of Fennelly J. and the order proposed. However, I wish to add a few words in this matter.

2. On the 14th July, 2001 the applicant/appellant, referred to as "the appellant" in this judgment, was charged that on

the 30th June, 2001 in Letterkenny he assaulted Paul McGeady causing him harm, contrary to s.3 of the Non-Fatal

Offences Against the Person Act, 1997. He was remanded on station bail to attend at Letterkenny District Court on the

4th October, 2001. However, he could not attend in court on that day as he had been sentenced to three and a half

years imprisonment at Belfast Crown Court. In February, 2003 the appellant was released from prison in Northern Ireland

and he made inquiries as to the proceedings in Letterkenny. In November 2003 he was informed by the gardaí that the

Director of Public Prosecutions, the respondent, referred to in this judgment as "the Director", had decided not to pursue

the matter and that there would be no prosecution. He deposed that:-

"I thought this was the end of the matter and went about my ordinary life both in this jurisdiction and in Northern

Ireland."

The next he knew of the matter was when on the 18th May, 2006 he was arrested by officers of the Police Service of

Northern Ireland acting on the basis of a European arrest warrant issued by the High Court on the 15th November, 2005 in

relation to the charge. It appears that the family of the complainant had met members of the gardaí and expressed their

concern that there was to be no prosecution, which concerns were passed on to the Director by letter dated 18th

November, 2003. A fresh direction to prosecute the appellant was issued on the 8th May, 2004. As the appellant was

outside the jurisdiction a European arrest warrant was sought and executed.

3. Although the matter of lost evidence was raised initially, it is not an issue in the case. The prosecution plans to

proceed on the primary evidence of the injured party.

4. Although the appellant raised the issue of stress and anxiety, his evidence is not such as to ground an order in his

favour on that basis.

5. Although there has been delay in this case, for the reasons given by Fennelly J. I am satisfied that delay per se is not

a reason to prohibit the trial in this case. The situation is different to that in LO'N v. Director of Public Prosecutions

[2007] 4 I.R. 481.

6. The circumstances on this appeal are also different to those on G.E. v. Director of Public Prosecutions [2000] 1 I.R.

801. In that case Kearns J. stated at pp. 812 to 813:-

"Here a radically different prosecutorial decision was made in respect of precisely the same material which was

once seen as appropriate only for a charge of attempted carnal knowledge. The applicant has lost his option of

having his case dealt with in the District Court and faces the prospect of a trial far from his home environment

with a possibility of a far greater sentence upon conviction. This is palpably unfair given that the applicant has

done nothing to contribute to this dramatic change of circumstances. An alternative charge which did not possess

these features would obviously not have given rise to such consequences."

7. The Director is an important independent office in the State and independent in the performance of his functions:

Prosecution of Offences Act, 1974. A clear policy of non-intervention by the courts in the exercise of the discretion of

the prosecutor, except in particular circumstances, has been stated in cases over the last few decades. An independent

prosecutor is an important part of the fabric of a fair justice system. The prosecutor must not only be independent but be

seen to be independent. If the Director is seen to change his decision where there are no new factors but simply after

representations by a victim or his family, it raises issues as to the integrity of the initial decision and the process, and

thus may impinge on confidence in the system. It is important that a prosecutor retain the confidence of society in his

process of decision making.

8. It is entirely appropriate that the Director have a process wherein he may review an earlier decision. The fact that he

may review his decision is now a matter in the public domain.

9. It is essential that the Director remain independent. However, he is subject to the constitutional requirement of fair

procedures. While the fair procedures appropriate at the investigation stage of a prosecution are not equivalent to those

at trial in a court of law the process requires to be constitutionally firm.

10. In a situation where there is no statute of limitations on the prosecution of the offence, and where there are no

statutory time limits on the duration of a prosecution process, it is important that such process be fair, and be seen to be

fair.

11. Each case is dependent upon its own facts. The facts of this case are distinguishable from those of Eviston v.

Director of Public Prosecutions [2002] 3 I.R. 260.

12. The law as to judicial review of the decision of the Director was stated by Finlay C.J. in State (McCormack) v.

Curran, [1987] I.L.R.M. 225 at p.237:-

"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."

13. In Eviston v. Director of Public Prosecutions [2002] 3 I.R. 260 at 294, Keane C.J., having reviewed the case law,

stated:-

"…

[I]n 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 [Director] not to prosecute where:-

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

(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

[Director] not to prosecute the person concerned.

They also make it clear that, in such circumstances, the [Director] 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."

14. The Director must apply fair procedures in the exercise of his statutory functions. As McGuinness J. stated in Eviston

v. Director of Public Prosecutions [2003] 3 I.R. 260 at p.320:-

"… 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 [Director]. 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 [Director] 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."

15. In light of all the circumstances of this case, there are no reasons in law for the Court to intervene in the exercise of

the prosecutorial discretion of the Director. Consequently, I am in agreement with the judgment of Fennelly J.

16. Of course, the trial judge retains full jurisdiction to ensure that there is a fair trial in this matter. Also, should there be

a conviction, the circumstances of the case and of the appellant also continue to be relevant to any issue of sentence.