Cyril Hobson v DPP

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 16 November 2005
• Neutral Citation: [2005] IEHC 368
• Docket Number: [2005 No. 107 JR]
• Court: High Court
• Date: 16 November 2005

[2005] IEHC 368

THE HIGH COURT

Record Number: No. 107 JR/2005

HOBSON v DPP

Between:

Cyril Hobson

Applicant

And

The Director of Public Prosecutions

Respondent

ROAD TRAFFIC ACT 1968 S52(1)

PROSECUTION OF OFFENCES ACT 1974 S2(5)

EVISTON v DPP 2002 3 IR 260 2002 1 ILRM 134

CRIMINAL LAW

Procedure

Director of Public Prosecutions - Prosecutorial decision - Change of prosecutorial decision on charges preferred - Reversal of decision not to prefer particular charge - Whether new circumstances or evidence necessary to justify change of decision - Whether duty to give reasons for reversal of decision - Prejudice caused by prosecutorial change of decision - Eviston v DPP [2002] 3 IR 260 distinguished -Application refused (2005/107JR - Peart J -16/11/2005) [2005] IEHC 368, [2006] 4 IR239

Hobson v DPP

1 Mr Justice Michael Peart delivered on the 16th day of November 2005:

2 Tragedy struck the village of Avoca in Co. Wicklow on a summer's day in June 2003 when two young local girls died from injuries they received while they were walking near the bridge. The applicant was driving a tractor and trailer on which were loaded twenty bales of silage. As he entered onto the bridge the trailer came into contact with these unfortunate girls who were strolling along the side of the road pushing their bicycles. The applicant made a voluntary statement to the Gardai two months later.

3 It is fair to say judging from some of the averments contained in his grounding affidavit that the applicant has been the object of some very hostile attention since this tragedy and which he believes was orchestrated by the family of one of the victims. An added feature of this tragic event is that the applicant is totally deaf, as well as mute. He has sworn that the hostile attention to which he says he has been subjected has caused him great anxiety and stress.

4 The applicant avers that in January 2004 his solicitors received confirmation from the respondent that he would not be charged with dangerous driving causing death, but instead would be charged with the lesser offence of driving without due care and attention contrary to s. 52(1) of the Road Traffic Act, 1968as amended, as well as with certain other offences of a minor nature, such as a bald tyre and no rear number plate on the trailer. He exhibits, inter alia, a letter dated 6 ^th February 2004 from his solicitor to Sgt McAndrews of Avoca Garda Station, which states the following:

"We confirm that it is a great relief to our client that the DPP has not directed a dangerous driving causing death causing death charge and in the circumstances we confirm our client will be pleading guilty to worn tyre, careless driving and no number plate on the trailer charges. We hope to be able to enter this plea on 18 ^th February 2004, and may then require an adjournment to present mitigation reports, including an outline of how Cyril has met the challenge of being deaf and mute, and the ruinous effect of a possible disqualification order."

5 These summonses were issued in the District Court Office on the 23 ^rd December 2003, and appear to have been served sometime during the second fortnight of January 2004, and were returnable before the Court on the 18 ^th February 2004. However, it appears that on the 21 ^st January 2004 the father of one of the girls who died in this tragic event instituted his own private prosecution against the applicant in respect of a charge of dangerous driving causing death, which summons was also returnable before the District Court on the 18 ^th February 2004. On the 18 ^th February 2004 all matters were adjourned on the application of the solicitor for the DPP. The stated reason for the adjournment, according to the applicant's affidavit is that the respondent wished to carry out a review of the decision not to prosecute a charge of dangerous driving causing death. A number of further adjournments followed this initial adjournment, but eventually on the 15 ^th December 2004 the respondent caused a charge of dangerous driving causing death to be preferred against the applicant, and the matter was adjourned in due course until the 15 ^th January 2005. During the period of that adjournment the applicant's solicitor wrote to the respondent seeking reasons for the reversal of the decision made earlier not to charge the applicant with the charge of dangerous driving causing death. No reply of substance was received to this request, and on the 19 ^th January 2005 a Book of Evidence was served on the applicant and he was sent forward to the Circuit Court for trial.

6 In a replying affidavit, Sgt McAndrew has stated that when he communicated with the applicant's solicitor on the 22 ^nd December 2003 he had simply told that solicitor what offence the applicant would be charged with, rather than that there would be no charges in respect of any particular offence. There is a further replying affidavit from Ms. Eithne Muldoon of the DPP's office. She states that a decision was taken at a level higher than her on the 23 ^rd December 2003 that the applicant would be charged with careless driving. She goes on to say that on the 13 ^th January 2004 a letter was received from the father of one of the girls who died requesting a review of the decision to prosecute for careless driving. She states that as the file had been submitted to the DPP for decision the request for review was not granted, and that on the 16 ^th January 2005, solicitors acting for that father indicated that they would be applying to the District Court for a summons for dangerous driving causing death. She goes on to state that in view of the private prosecution for the more serious charge, the DPP stated that he would look at the decision made relating to the careless driving charge, and requested a further report "in relation to the adequacy of the mirrors fitted to the trailer attached to the applicant's vehicle at the time of the accident". Counsel's opinion was also requested. On the 17 ^th May 2004 the further report prepared by Garda Tucker was available, and Counsel's opinion was available by the 5 ^th August 2004. The respondent made a decision on the 13 ^th October 2004 that the applicant should be charged with the offence of dangerous driving causing death.

7 Ms. Muldoon also avers as to the DPP's position regarding an extant private summons for that charge. She states that when such a private summons reaches the return for trial stage in the District Court, the DPP will decide whether or not he will take it over since he is the only person who can prosecute such an offence on...