H (H) v DPP & Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 31 January 2012
• Neutral Citation: [2012] IEHC 41
• Court: High Court
• Date: 31 January 2012

[2012] IEHC 41

THE HIGH COURT

Record Number: No. 511 JR/2011

H (H) v DPP & Commissioner of An Garda Siochana

Between:

H H

Applicant

And

Director of Public Prosecutions

First Respondent

And

Commissioner of An Garda Siochana

Second Respondent

MEADOWS v MIN FOR JUSTICE 2010 2 IR 701

EFE & ORS v MIN FOR JUSTICE & ORS 2011 2 ILRM 411

EVISTON v DPP 2002 3 IR 260

E (G) v DPP 2009 1 IR 801

CRIMINAL LAW (AMDT) ACT 1935 S1(1)

G (A) v K (J) & ORS UNREP HEDIGAN 25.2.2011 2011 IEHC 65

M (L) v CMSR OF AN GARDA SIOCHANA & ORS UNREP HEDIGAN 20.1.2011 2011 IEHC 14

L (B) v IRELAND & ORS 2011 1 IR 374

CRIMINAL LAW

Prosecution

Decision not to prosecute - Lack of reasons - Proportionality - Requirements of fairness and fair procedures - Delay in garda investigation - Duty of care - Whether exceptional circumstances - Whether requirement to give reasons - Whether decision proportional - Whether applicant deprived of fair procedures - Whether arguable case - Whether duty of care owed by gardaí to victim of crime -Whether breach of fundamental right - Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701; Efe v Minister for Justice [2011] IEHC 214, [2011] 2 IR 798; Eviston v DPP [2002] 3 IR 260; E(G) v DPP [2008] IESC 61, (Unrep, SC, 30/10/2008); G(A) v K(A) [2011] IEHC 65, (Unrep, HC, Hedigan J, 25/2/2011); M(L) v Commissioner of An Garda Síochána [2011] IEHC 14, (Unrep, HC, Hedigan J, 20/1/2011) and L(B) v Ireland (Unrep, HC, Kearns P, 10/12/2010) considered - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Leave refused (2011/511JR - Peart J - 31/1/2012) [2012] IEHC 41

H(H) v DPP

1 ) In February 2011 the applicant was informed that the DPP had made a decision not to prosecute her former partner for offences of rape, assault and sexual abuse about which she had made a complaint to a member of An Garda Siochana in May 2006. The statements made by her in relation to these complaints, if true, disclose acts of appalling violence against her over a considerable period of time.

2 ) She has availed of her right to request a review of that decision, albeit after these proceedings were commenced. Such a review has been carried out, and by letter dated 27 ^th July 2011 the DPP indicated that the decision not to prosecute should stand. She has not been given any reasons for the decision not to prosecute the alleged perpetrator. In addition, it is accepted by An Garda Siochana that there was delay in the carrying out of an investigation into the alleged offences, which is said to have resulted from "personal problems" by the member to whom the applicant had made her complaint. The investigation was taken over by another member of An Garda Siochana in or around the 15 ^th December 2009, and eventually the file was submitted to the DPP around the 17 ^th September 2010.

3 ) The DPP communicated his decision not to prosecute to An Garda Siochana on the 5 ^th January 2011, and the applicant received a telephone call on the 24 ^th February 2011 from An Garda Siochana in which she was notified of that decision. While the DPP cannot be blamed for any of the delay which occurred following the submission of the file to him by An Garda Siochana, the fact is that one way or another a period of some four and a half years has elapsed since she made her complaint, despite the false assurances given to the applicant by the member who was replaced that matters were in hand and that a file had been sent to the DPP much earlier.

4 ) The applicant does not understand why her former partner is not to be prosecuted for these alleged offences. She has requested the reasons for the decision not to prosecute, but has been refused. She is concerned to know the reasons, and suspects that the delay in the investigation of the offences and in the file reaching the DPP has been the cause of, or has at least contributed to, the decision not to prosecute. She has not been assured that it was not.

5 ) Solicitors acting for the applicant have sought reasons from the DPP, and have sought also a copy of the file sent to the DPP by An Garda Siochana. These have been refused by letter dated 30 ^th March 2011.

6 ) It is in these circumstances that the applicant applies for leave to seek the reliefs set forth in her Statement of Grounds. Those reliefs, summarised, are for orders of certiorari quashing the decision not to prosecute and the decision that reasons would not be provided to the applicant; an order of mandamus requiring the DPP to give his reasons for deciding not to prosecute the offences; orders of mandamus requiring the DPP and the Commissioner of An Garda Siochana to provide a copy of their file to the applicant (suitably redacted if necessary); various declarations as to breach of constitutional rights and/or rights under the European Convention on Human Rights arising from a failure by the DPP to give his reasons, and from the failure by An Garda Siochana to investigate the applicant's complaints in a timely manner or at all; and damages.

7 ) I directed that the application be brought on notice to the proposed respondents so that I could have the benefit of submissions on their behalf given the existing jurisprudence to the effect that the DPP is not obliged to provide reasons for a decision not to prosecute an offence other than where mala fides is established or some improper motive or policy. Even though this application is on notice, the test of arguability is not altered or raised from the test any other applicant applying for leave under Order 84 RSC must surmount. The applicant must demonstrate that she has an arguable case.

8 ) The applicant acknowledges the existing jurisprudence but seeks to argue firstly that there are exceptional circumstances in the present case, in particular the admitted delay by An Garda Siochana in investigating these offences and submitting a file to the DPP, which in turn led to greatly increased stress to the applicant and for a far longer period than was appropriate or necessary; but secondly that there have been more recent developments in the jurisprudence which this Court should have regard to when deciding of the threshold for arguability has been surpassed by the applicant, and in particular Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 I.R 701, and the comments thereon by Hogan J. in his judgment in joined cases Efe and others v. Minister for Justice, Equality and Law Reform and others, unreported, High Court, 7 ^th June 2011, in the context of proportionality. It is also submitted that not only was the investigation delayed greatly by the inactivity of the Garda who took the statement from the applicant, but also that there was in reality no investigation at all for over three years, as it was only some three years after the date of the alleged offences that the alleged perpetrator was interviewed by the member who took over the file eventually.

9 ) Micheál P. O'Higgins SC has referred to the Eviston v. DPP [2002] 3 IR 260 and to the acknowledgement therein by Keane CJ that in the exercise of his functions the DPP is subject to the Constitution and the law, and that the DPP may be subject to judicial review "where he acts otherwise than in accordance with the Constitution and the law". He reiterated also that the DPP was not immune from the general constitutional requirements of fairness and fair procedures. That much is uncontroversial. However, the breach of fair procedures in Eviston was, of course, not that no reasons were given, but that the DPP had reversed a previous decision not to prosecute which had been communicated to the applicant, and in circumstances where it was accepted that there had been no change in circumstances or new facts. On the facts of the present case, it cannot be said that the DPP has breached any right of the applicant to fair procedures, or that he has acted contrary to the Constitution and/or the law. There is no evidence adduced to support such a contention in this case, particularly as the complainant in respect of an alleged offence has no right to fair procedures as such in relation to the manner in which the DPP arrives at his/her decision whether or not to prosecute. Eviston related to fair procedures after the decision not to prosecute was communicated to the complainant, and in my view has no application to the present case.

10 ) The applicant relies also on the judgment of Kearns J. (as he then was) in GE v. DPP [2008] IESC 61...