Carlin v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly,Denham J.
• Judgment Date: 16 March 2010
• Neutral Citation: [2010] IESC 14
• Court: Supreme Court
• Docket Number: [S.C. No. 105 of 2008]
• Date: 16 March 2010

Carlin v DPP

Between/

John Carlin

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

[2010] IESC 14

Denham J.

Fennelly J.

Macken J.

[Appeal No: 105/2008]

High Court Record No: JR 789/2007

THE SUPREME COURT

CRIMINAL LAW

Procedure

Director of Public Prosecutions - Charges - Decision not to prosecute - Subsequent review and reversal of decision not to prosecute - No new evidence - Whether decision ultra vires - Fair procedures - Right to fair trial - Delay - Whether prejudice to applicant by virtue of reversal of decision - Stress and anxiety to applicant - Eviston v Director of Public Prosecutions [2003] 2 IR 260 and PM v Director of Public Prosecutions [2006] IESC 22, [2006] 3 IR 172 followed; LO'N v Director of Public Prosecutions [2006] IEHC 184, [2007] 4 IR 481 distinguished - Applicant's appeal dismissed (105/2008 - SC - 16/3/2010) [2010] IESC 14

Carlin v Director of Public Prosecutions

Facts: The appellant complained that the decision of the Director of Public Prosecutions to back on his decision not to prosecute would be unfair and unjust. The appellant sought judicial review by way of prohibition of the decision to prosecute alleging unfairness. It had been alleged that he appellant had committed an offence of assault causing harm. The appellant contended that the delay in prosecuting him was blameworthy and that critical photographs had been lost.

Held by the Supreme Court per Fennelly J. (Denham, Macken JJ. Concurring), that the appellant had not established any ground of appeal from the judgment of the High Court. The only suggested prejudice related to the loss of photographs. The complaints regarding missing photographs was merely that. No meaningful attempt was made to relate any photographs to the trial of the appellant. Per Denham J. concurring: that there were no reasons in law for the Court to intervene in the exercise of the prosecutorial discretion of the Director.

Reporter: E.F.

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

O'N (L) v DPP 2007 4 IR 481 2006/47/9950 2006 IEHC 184

E (G) v DPP 2009 1 IR 801 2008/22/4725 2008 IESC 61

PROSECUTION OF OFFENCES ACT 1974

EVISTON v DPP 2002 3 IR 260

MCCORMACK, STATE v CURRAN 1987 ILRM 225

M (P) v DPP 2006 3 IR 172 2006 2 ILRM 361 2006/37/7964 2006 IESC 22

O'H (M) v DPP 2007 3 IR 299 2007/49/10412 2007 IESC 12

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

2 Judgments delivered by Denham J.& Fennelly J. Macken J. concerning with both

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

4 2. On the 14 ^th July, 2001 the applicant/appellant, referred to as "the appellant" in this judgment, was charged that on the 30 ^th 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 4 ^th 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."

5 The next he knew of the matter was when on the 18 ^th 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 15 ^th 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 18 ^th November, 2003. A fresh direction to prosecute the appellant was issued on the 8 ^th May, 2004. As the appellant was outside the jurisdiction a European arrest warrant was sought and executed.

6 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.

7 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.

8 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.

9 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."

10 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.

11 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.

12 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.

13 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.

14 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.

15 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."

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

"..."

17 [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:-

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

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

20 (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.

21 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."

22 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...