H v DPP

• Jurisdiction: Ireland
• Judgment Date: 19 May 1994
• Date: 19 May 1994
• Docket Number: [S.C. No. 106 of 1994]
• Court: Supreme Court

H. v. Director of Public Prosecutions

H.

Applicant

and

The Director of Public Prosecutions and The Commissioner of the Garda Síochána, Respondents

[S.C. No. 106 of 1994]

High Court

Supreme Court

Criminal law - Director of Public Prosecutions - Decision not to institute a prosecution - Whether the Director could be compelled to institute a prosecution or in the alternative to provide reasons for not so doing and to provide to a private individual for the purposes of a private prosecution documentation prepared for the State - Prosecution of Offences Act, 1974 (No. 22), s. 2, sub-s. 5.

Judicial review - Mandamus - Practice - Whether the respondent's statement of opposition should include all grounds upon which leave to apply for judicial review was sought or only those upon which leave was granted.

Judicial review - Mandamus - Reliefs - Discretion - Whether the granting of reliefs was in the best interest of the infant.

Section 2 of the Prosecution of Offences Act, 1974, established the office of Director of Public Prosecutions. Sub-section 5 of that section provides that:—

"The Director shall be independent in the performance of his functions."

Following a refusal by the first respondent to initiate a prosecution, the applicant brought a private prosecution against her husband, T.T.M., and his brother, J.M., charging them with having committed sexual offences against her son, N.H., contrary to the Offences Against the Person Act, 1861. The applicant instituted proceedings by way of judicial review seeking an order of mandamus (a) to compel the first respondent either to institute a prosecution against her husband and his brother or, alternatively, to give her reasons why he had not done so and (b) to supply her with any statements taken by the gardai and any other relevant documentation in his possession to enable her to pursue her independent prosecutions. The applicant alleged that the reason why the first respondent had failed to institute a prosecution was because her husband was a police informer.

By order of the High Court the applicant was given leave to apply for an order ofmandamus only insofar as regarded the provision of statements and documentation. The respondents put in grounds of opposition only relating to such provision of statements and documents.

At the hearing Barron J. heard argument on both matters, that is on whether the first respondent should be compelled (a) to institute a prosecution or to give reasons for not doing so and (b) to supply the applicant with such statements and documentation.

Held by Barron J., 1, that because no prima facie case of mala fides had been made out against either respondent and because the facts of the case did not exclude the reasonable possibility that the first respondent's decision was proper and valid, the first respondent could not be compelled to explain or give reasons for his decision or to provide documentation.

The State (McCormack) v. Curran [1987] I.L.R.M. 225 followed.

2. That once an adverse decision was challenged by a person with locus standi to challenge it, the first respondent was in the same position as any other person acting under statutory power and was obliged to give his reasons.

International Fishing Vessels Ltd v. Minister for the Marine [1989] I.R. 149 followed.

3. That in determining the nature of the relief to be granted to the applicant, the court must be satisfied that the granting of relief will not be against the interests of the infant.

Having received further affidavit evidence Barron J. found, inter alia, that he had no evidence before him as to whether it would be in the interest of the infant that any relief be granted to the applicant; that the infant was then a ward of court in England; and that it was extremely unlikely that he would ever be willing to give evidence in support of the applicant's allegations against her former husband. In the circumstances, he refused to grant the applicant the relief she was seeking.

Against this refusal of relief the applicant appealed, and the respondents filed a cross-appeal seeking to vary the findings of Barron J. that the first respondent must give reasons for not initiating a prosecution when challenged by a person with locus standi.Before the Supreme Court counsel for the respondents argued that there would often be good and cogent reasons why the first respondent should decide not to prosecute and where it would be inappropriate that these reasons should be brought into the public arena.

Held by the Supreme Court (O'Flaherty, Egan and Denham JJ.), in dismissing the appeal and allowing the cross-appeal, 1, that in the absence of a prima facie case of mala fides being made out and where the facts do not exclude the reasonable possibility of a proper and valid decision of the first respondent not to prosecute, he cannot be called upon to explain his decision or to give the reasons for it nor the sources of the information upon which it is based. There was nothing before the Court from which it could be reasonably inferred that the decision of the first respondent was perverse, or inspired by improper motives, or that he had abdicated his functions and an unsubstantiated statement of belief by the applicant which had not been denied by the first respondent did not give rise to an adverse inference.

The State (McCormack) v. Curran [1987] I.L.R.M. 225 applied.

2. That in deciding whether or not to initiate a prosecution, the first respondent is not settling any question or dispute or deciding rights or liabilities. As the duty to give reasons stems from a need to facilitate full judicial review, the limited intervention available in the context of decisions of the first respondent obviates the necessity to disclose reasons.

International Fishing Vessels Ltd. v. Minister for the Marine [1989] I.R. 149 distinguished.

Per O'Flaherty J. (Egan J. concurring): The first respondent should not, in general, give reasons in any individual case as to why he has not brought a prosecution because if he did so in one case he must be expected to do so in all cases. If the first respondent were to be subjected to frequent applications seeking to compel him to bring prosecutions, his office would be stretched beyond endurance.

Per Denham J.: As a question of fact and law it was correct for the first respondent to file a statement of opposition directed solely to the ground upon which leave to apply for judicial review was granted and to ignore those grounds upon which leave had been refused.

Cases mentioned in this report:—

International Fishing Vessels Ltd. v. The Minister for the Marine[1989] I.R. 149.

The State (Collins) v. Ruane [1984] I.R. 105; [1985] I.L.R.M. 349.

The State (Ennis) v. Farrell [1966] I.R. 107.

The State (McCormack) v. Curran [1987] I.L.R.M. 225.

Judicial review.

The facts have been summarised in the headnote and fully set out in the judgment of Barron J., infra.

By order of the High Court (Geoghegan J.) made on the 11th January, 1993, the applicant was given leave to apply for an order ofmandamus by way of judicial review to compel the Director of Public Prosecutions to provide to the applicant certain documentation.

The application, by notice of motion dated the 15th January, 1993, was heard by the High Court (Barron J. on the 31st March and the 25th May, 1993.

The applicant appeared in person.

By notice of re-entry filed on the 31st January, 1994, the matter came again before the High Court on the 11th February, 1994, whereupon Barron J. refused to grant to the applicant any of the reliefs she sought. The matter came before Barron J. again on the 24th February, 1994, and he delivered an extemporaneous judgment finding that the granting of reliefs had not been shown to be in the interests of the infant involved and refusing the applicant the reliefs she sought.

The applicant appealed by notice of appeal dated the 16th March, 1994, and on the 13th May, 1994, the time for serving a notice of cross appeal was extended.

The appeal was heard by the Supreme Court (O'Flaherty, Egan and Denham JJ.) on the 19th May, 1994.

Cur. adv. vult.

Barron J.

The applicant has commenced a private prosecution against her husband, T.T.M., and his brother, J.M., charging them with having committed various sexual offences against her son, N.H., under various provisions of the Offences Against the Person Act, 1861. She has done so following the refusal of the Director of Public Prosecutions to institute a prosecution in his name. She sought liberty to apply for judicial review to compel the Director either to initiate a prosecution against her husband and his brother or alternatively to give her reasons why he had failed to do so and also to supply her with any statements taken by the gardai and any other relevant documentation in his possession to enable her to pursue her independent prosecution. She was given liberty on the 11th January, 1993, to apply for an order of mandamuscompelling the Director to furnish her with statements and other doc-umentation. She was refused leave to seek judicial review in relation to the other relief she was claiming.

In my view the relief which she was seeking by way of an order ofmandamus to compel the Director to institute a prosecution or alternatively to give his reasons for not so doing should be dealt with by this court. I have, accordingly, heard argument in relation to these matters.

The application was grounded upon an affidavit of the applicant. There has been no affidavit filed on behalf of the respondents. They have limited their opposition to a statement of opposition filed on the 15th February, 1993, as follows:—

"1. The respondents or either of them are not under any duty to the applicant whether at law or otherwise to supply her with the garda investigation file as requested by her.

2. The applicant has no entitlement whether at law or otherwise to the production to her of...