B.H. v The Director of Public Prosecutions and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 31 July 2023 |
| Neutral Citation | [2023] IEHC 483 |
| Court | High Court |
| Docket Number | Record No. 2022/1088 JR |
[2023] IEHC 483
Record No. 2022/1088 JR
THE HIGH COURT
JUDGMENT of Mr. Justice Barr delivered extempore on 31st day of July 2023.
. This is an application for an order directing that the first respondent should make discovery in the context of judicial review proceedings that have been brought by the applicant against the decision made by the first respondent that he should be prosecuted for certain historic sex offences.
. The background to the substantive judicial review proceedings can be very briefly summarised in the following way: statements were made by two complainants, who are brothers, alleging that they had been sexually assaulted by the applicant at various dates in or about 1991. The complaints were not made simultaneously. Having considered the complaint made by the first brother and the Garda investigation file thereon, the first respondent directed that there be no prosecution brought against the applicant. Thereupon, a statement of complaint was made by the second brother. Having considered the Garda investigation of that matter, the first respondent also directed that there should be no prosecution against the applicant in respect of those allegations.
. On 12 November 2021, one of the complainant's lodged a request with the DPP for a summary of reasons why she had not directed any prosecution in respect of his complaint, pursuant to the Criminal Justice (Victims of Crime) Act 2017 (hereinafter the “2017 Act”). It is the first respondent's case that that request precipitated an internal procedure whereby a professional officer in the Victims Unit of the first respondent, reviewed the files for the purposes of providing those reasons to the requesting party. Having carried out a review of the files, on 3 October 2022, the first respondent directed that a prosecution be brought against the applicant in respect of the complaints made by both complainants.
. In the substantive judicial review proceedings, the primary relief sought by the applicant is an order of certiorari of the decision reached by the first respondent, directing that a prosecution be brought against him. The applicant also seeks a number of declaratory reliefs and injunctive reliefs in his substantive proceedings.
. In the present application, the applicant seeks an order for discovery against the first respondent in respect of the following categories of documents:
All documents, records and other relevant papers relating to the decision-making process, including guidelines, policies, training or instruction to be followed by directing officers in the discharge of their functions, limited to such material as applied at the time of the respective decisions herein.
All documents, records and other relevant papers relating to the decisions of the respondent (not to prosecute) as they relate to the complainants referenced in these proceedings as “BF” (decision of 16/10/2020) and to the complainant referenced in these proceedings as “AF” (decision of 20/10/2021) and the decision of the respondent (to prosecute) as it relates to both complainants BF and AF, (decision of 3/10/2022).
All documents, records and other relevant papers relating to the review of the aforementioned decisions, and the procedures for review.
. On behalf of the applicant, Mr. Paul Moore, solicitor, submitted that, having regard to the matters that had been pleaded in the applicant's statement of grounds and in the respondents' statement of opposition, the documentation which was sought in the applicant's notice of motion, was relevant and necessary to enable the applicant to adequately deal with the issues that would arise on the hearing of his judicial review application herein.
. In particular, he stated that where the applicant was challenging the validity of the decision made by the first respondent to direct a prosecution against him, in circumstances where the first respondent had refused to issue such a direction in respect of the same complaints on previous occasions, and when no new evidence had come to light in the interim, which might have explained the change of mind on the part of the first respondent, it was appropriate that the applicant be furnished with the documentation sought in his notice of motion.
. In relation to the documents sought at category 1, it was submitted that insofar as the respondent contended that the protocols and procedures governing when a review would be carried out in her office in relation to decisions not to direct a prosecution, were publicly available documents and insofar as the first respondent sought to rely on the statement at paragraph 10 in her Annual Report of 1998; it was submitted that if that was a comprehensive statement of the guidelines, protocols and principles that were applicable at the time when the first respondent decided to carry out a review of the files in relation to the applicant, that should be clearly stated on affidavit.
. Mr. Moore submitted that if it was the case that the protocols or principles governing when a review would be carried out in the office of the first respondent had not changed in the wake of the statutory changes introduced by the 2017 Act, the first respondent should be required to state that in an affidavit of discovery. Alternatively, if the policies and principles in relation to the circumstances in which a review would be carried out by her office, had changed following the introduction of that Act, those amended principles or protocols should be discovered to the applicant, to enable him to make his case that in directing a review of the earlier decisions not to prosecute him, and in reaching the decision to direct a prosecution on foot of the complaints previously considered, the first respondent had not acted in a lawful manner. In this regard, Mr. Moore referred to the decisions in Eviston v. Director of Public Prosecutions [2002] 3 IR 260; Taylor v. Clonmel Healthcare Ltd [2004] 1 IR 169.
. It was accepted by the applicant's solicitor that the documentation sought under category 2, was probably too widely drafted. It was submitted that the court could make an order for discovery of documents under this category, limited to those documents that were relevant and necessary to enable the applicant, either to mount his case in the substantive judicial review proceedings, or to answer the case that had been put forward by the respondents in their statement of opposition and in the replying affidavit sworn by Mr. Padraic Taylor on 3 March 2023.
. It was submitted that where an alleged victim of a criminal offence, had a statutory right to be furnished with reasons why a prosecution had not been directed in relation to their complaint; it followed that it was a requirement of justice that in appropriate circumstances, the person who had benefited from such decision, being the person accused of having committed a criminal offence, should also be furnished with the reasons why the original direction not to prosecute had been given; where the provision of such reasons was necessary in the context of subsequent legal proceedings. Mr. Moore submitted that the requirements of equal treatment, as provided for under the principles of natural justice and under the Constitution of Ireland, required that in the circumstances of this case, the applicant be furnished with the documentation concerning the decision not to prosecute him in respect of the complaints that had been lodged by the complainants, which decisions had been made by the first respondent on 16 October 2020 and 20 October 2021.
. In relation to the documents sought in category 3, Mr. Moore conceded that the documents sought therein, were essentially a combination of the documents that had been sought in categories 1 and 2 of the notice of motion. It did not appear to require production of any additional documents, that would not be covered under the previous two categories.
. On behalf of the respondents, it was submitted by Ms. McDonagh SC, that an application for discovery of documents had to be viewed through the prism of the matters that arose for determination on the pleadings. It was submitted that in this case, the applicant's primary complaints were that (I) there had been a failure on the part of the first respondent to...
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