Hamill v The Director of Public Prosecutions

• Jurisdiction: Ireland
• Judge: Ms Justice Marguerite Bolger
• Judgment Date: 06 December 2023
• Neutral Citation: [2023] IEHC 688
• Court: High Court
• Docket Number: [Record No. 2022/498JR]

Between

Tanya Hamill

Applicant

and

The Director of Public Prosecutions

Respondent

[2023] IEHC 688

[Record No. 2022/498JR]

THE HIGH COURT

JUDICIAL REVIEW

Discovery – Judicial review – Prosecution – Applicant seeking discovery of documentation concerning the respondent’s decisions about the applicant’s prosecution – Whether it would be lawful or appropriate to require the respondent to provide the sources of information on which the decisions were based

Facts: The applicant, Ms Hamill, in November 2019, was summoned to appear at Portlaoise District Court in respect of possession and supply of drugs charges pursuant to the Misuse of Drugs Act 1977 which was adjourned to 21 March 2021. The prosecution sought an adjournment which the District Judge refused. He struck out the proceedings and said that if the applicant was to be recharged, this should be done within a period of four weeks. The applicant and the respondent, the Director of Public Prosecutions, agreed that the District Judge lacked jurisdiction to direct a timeframe or the modality for any further prosecution. In November 2021, the applicant was recharged on indictment before the Circuit Court which the applicant claimed caused her prejudice in exposing her to a far longer potential sentence and deprived her of the possibility of serving a concurrent sentence. She said the prosecution was in breach of her rights to fair procedures and to a fair trial, and breached her legitimate expectations. The applicant was granted leave to apply for judicial review on 4 July 2022. By letter dated 2 May 2023, the applicant’s solicitor sought discovery of all documentations concerning the respondent’s decisions to commence a summary prosecution against the applicant and to commence a prosecution on indictment against her. The letter said discovery was sought as sight of all documentation considered and available as part of the decision-making process would assist the court in its inquiry into the impugned decision. The respondent disputed the relevance or necessity of the documents sought but primarily relied on her special and unique position arising from her independence, which means that she does not have to explain the reasons for a prosecution. The respondent said she was entitled to prosecute as she did and disputed that any unfairness or direct prejudice had been caused to the applicant or that the applicant had suggested any impropriety such as to trigger the respondent’s exceptional duty to give reasons for her decision.

Held by the High Court that the case law had not progressed to the point of allowing discovery of documentation relating to a decision of the respondent to prosecute, even in the particular circumstances of this case where a decision was made to prosecute summarily and later to prosecute on indictment over the same alleged incident. The court held that the respondent’s position remained as special as was set out by the Supreme Court in Dunphy v DPP [2005] 3 IR 585 and in Marques v The Minister for Justice and Equality & ors [2019] IESC 16. The High Court held that what occurred in this case did not come within the exceptional circumstances required in order to direct discovery of documentation in relation to prosecution decisions where the facts on affidavit did not exclude the reasonable possibility of a proper and valid decision by the respondent in prosecuting the applicant on a summary basis and later on indictment. The court was not satisfied that it would be lawful or appropriate to require the respondent to provide the sources of information on which the decisions were based. The court came to that conclusion on the basis of the substantive application for discovery and not by reference to the respondent’s stated view that it may be necessary to assert privilege over the documents sought.

The Court’s indicative view on costs was that, in accordance with s. 169 of the Legal Services Regulation Act 2015, the respondent, having succeeded in its position that discovery should be refused, was entitled to the costs of the application with a stay on the execution of that costs order pending the outcome of the substantive proceedings.

Application refused.

Counsel for the applicant: Mel Christle SC, Richard Wixted BL.

Counsel for the respondent: Conor McKenna BL.

JUDGMENT ofMs Justice Marguerite Bolgerdelivered on the 6 ^th day of December 2023

1 . This is the applicant's application for discovery of documentation concerning the Director's decisions about the applicant's prosecution, which is sought pursuant to the applicant's substantive judicial review proceedings to restrain the applicant's prosecution as unfair, in breach of her constitutional and Convention rights to a fair trial and fair procedures and in breach of her legitimate expectations.

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