Judicial Review of the Decisions of the Director of Public Prosecutions

Author:Shauna Keniry
Position:Senior Sophister LLB (ling germ) Candidate and Scholar, Trinity College Dublin
Pages:196-213
© 2016 Shauna Keniry and Dublin University Law Society
JUDICIAL REVIEW OF THE DECISIONS OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
SHAUNA KENIRY*
The decision to prosecute or not to prosecute is of great
importance. It can have the most far-reaching consequences for an
individual. Even where an accused person is acquitted, the
consequences resulting from a prosecution can include loss of
reputation, disruption of personal relations, loss of employment
and financial expense, in addition to the anxiety and trauma caused
by being charged with a criminal offence. A wrong decision to
prosecute or, conversely, a wrong decision not to prosecute, both
tend to undermine the confidence of the community in the criminal
justice system.1
Introduction
The traditional confinement of the scope of judicial review of prosecutorial
discretion may appear counter-intuitive when one considers the potential
gravity of the consequences attached to decisions of the Director of Public
Prosecutions (DPP). An objection may be made that the scope and intensity
of judicial review of an administrative decision should be commensurate
with the severity of its effects on individuals. However, the Irish courts have
traditionally been cautious about placing restrictions on the particular
independence of outside control conferred on the Director and his officers
by the legislature,2 to the extent that decisions of the Office were previously
said to enjoy a “special protection” or partial immunity from review .3 In
recent years, the case-law in the area has increasingly shown indications that
the “special protection” enjoyed by the DPP may be growing gradually
weaker.
* Senior Sophister LLB (ling germ) Candidate and Scholar, Trinity College Dublin.
1 Office of the Director of Public Prosecutions, Guidelines for Prosecutors
7)_ENGLISH1.pdf > (visited 23 January 2015).
2 Prosecution of Offences Act 1974, s. 2(5): “The Director shall be independent in the
performance of his functions.”
3 “Special protection” being the term used by Hardiman J in Dunphy (A minor) v DPP [2005]
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197
This article will examine the current position on the judicial review of
decisions of the DPP in light of the 2014 decision of the Supreme Court in
Murphy v Ireland.4 The decision raised interesting issues in relation to the
appropriate scope of judicial review of the prosecutorial discretion,
particularly in light of the Court’s finding that the DPP could, in certain
limited circumstances, be required to give reasons for her decisions, or
justify her refusal to do so. This article will begin by briefly considering the
law immediately prior to the decision in Murphy. The discussion will then
turn to the decision itself, and its subsequent treatment in the recent High
Court judgment, Attorney General v Marques.5 It will be argued that the
High Court’s analysis is an overly restrictive interpretation of Murphy as it
makes the availability of judicial review for procedural fairness, (and
consequently the determination of whether reasons are required in a given
case) dependent on the applicant’s ability to prove that their case involves
exceptional circumstances. It will be further argued that this approach is
incompatible with the operation of the constitutional right to fair procedures
envisaged in the leading Supreme Court decision in Dellway Investments v
National Asset Management Agency.6
I. Background
Judicial acknowledgement of qualifications to the “special protection”7
enjoyed by decisions of the DPP in this jurisdiction has traditionally been
hesitant. The rationales for the court’s reluctance to interfere with
prosecutorial discretion include the courts unwillingness to interfere with
the uniquely executive function of Office of the DPP out of concern for the
separation of powers, a reluctance to overburden the courts with the frequent
applications for judicial review of the DPP’s decisions, the danger that the
DPP may begin to second guess her decisions as a result of overzealous
scrutiny by the courts, and the unnecessary disclosure of law enforcement
strategies at the risk of undermining crime control. In recent years,
however, the courts, while maintaining a language of extreme deference
towards the Office of the DPP, have gradually recognised a number of
qualifications to the DPP’s historical immunity from review.
4 [2014] IESC 19; [2014] 1 ILRM 457 [hereinafter Murphy].
5 [2015] IEHC 798 [hereinafter Marques].
6 [2011] IESC 4; [2011] 4 IR 1 [hereinafter Dellway].
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The earliest of the authorities to suggest that the immunity of the DPP
is not entirely impenetrable is State (O’Callaghan) v Ó’hUadhaigh.8 In that
case, the applicant lodged judicial review proceedings because the DPP had
entered a nolle prosqui in respect of the applicant before the Circuit Court
but subsequently charged him with the same offences before the District
Court. In the High Court, Finlay P premised his analysis on the proposition
that DPP’s decision to dismiss charges was reviewable. Ten years later,
Finlay CJ delivered what remains the leading judgment of the Supreme
Court on the general reviewability of prosecutorial decisions in this
jurisdiction in State (McCormack) v Curran.9 In State (McCormack) the
applicant was charged with an extra-territorial offence within the meaning
of the Criminal Law (Jurisdiction) Act, 1976. The Act was one of the
measures implemented as a result of the Sunningdale Agreement with the
aim of bringing to trial fugitive offenders who, having committed violent
crime in one part of Ireland sought refuge across the border. The provisions
of the Act allowed the accused to opt for trial within the Republic of Ireland,
provided that a warrant for his or her arrest had been issued within the
jurisdiction for a corresponding offence. The applicant was implicated in a
plan involving the planting of a bomb under a bridge near the Monaghan-
Armagh border which was intended to kill or seriously injure members of
the Royal Ulster Constabulary traversing the bridge. When his request for
the issue of an arrest warrant was refused, he sought to challenge the
decision of the DPP not to prosecute him in the Republic of Ireland. Finlay
CJ rejected the contention that prosecutorial decisions were completely
exempt from judicial review as a matter of public policy, finding that the
Director’s traditional immunity would be qualified where it could be
demonstrated that the DPP reached a decision mala fides or influenced by
an improper motive or improper policy. 10
The law as stated by Finlay CJ in State (McCormack) and applied in
subsequent cases was usefully summarised by Keane J in Eviston v Director
of Public Prosecutions:11
the courts will not interfere with the decision of the [Director] not to
prosecute where:
8 [1977] IR 42 [hereinafter O’hUadhaigh].
9 [1987] ILRM 225 [hereinafter State (McCormack)].
10 [1987] ILRM 225, at 237.
11[2002] 3 IR 260; [2003] 1 ILRM 178 [hereinafter Eviston].
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(a) no prima facie case of mala fides has been made out against the
[Director];
(b) there is no evidence from which it could be inferred that he has
abdicated his functions or been improperly motivated; and
(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.
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.12
Keane CJ’s judgment in Eviston, went one step further than this. In
that case, the applicant was involved in a road traffic accident in which an
innocent third party was killed. The DPP decided not to prosecute the
applicant and notified her to this effect. Following representations made by
the deceased driver’s family, the DPP reversed his earlier decision not to
prosecute the applicant. No new facts had arisen and he declined to give
reasons for his decision. The applicant succeeded in the High Court in his
challenge to the reversal of the decision on the basis that for the respondent
to unmake his original decision and to reinstate a prosecution in
circumstances where no new evidence had come to light was “arbitrary and
perverse.”13 Kearns J concluded that no sensible person who applied his
mind to the matters to be decided by the respondent could have arrived at
the decision which he did, applying the test for reasonableness outlined by
Henchy J in State (Keegan) v Stardust Victims Compensation Tribunal.14
On appeal to the Supreme Court, however, Keane CJ held that the
High Court had been wrong in holding that the decision was so irrational as
to require that it be set aside. In the present case, as in any other case, the
DPP was fully entitled to review his earlier decision and to arrive at a
different conclusion, even in the absence of any new evidence or any change
of circumstances, other than the intervention of the family of the deceased.15
He then went on to give judgment for the applicant on an alternative ground,
namely that the Director’s decision was fatally vitiated by a want of fair
procedures. Keane CJ referred with approval to Ó’hUadhaigh, holding that
Finlay P’s finding in that case, that the DPP is not exempt in the
performance of his statutory functions from the general constitutional
12 [2002] 3 IR 260, at 294.
13 [2002] 3 IR 260, at 276.
14 [1986] IR 642, at 658 [hereinafter State (Keegan)].
15 [2002] 3 IR 260, at 297.
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requirements of fairness and fair procedures, was correct in point of law. He
concluded that the DPP’s communication of the decision not to prosecute
the applicant, followed by a reversal of that decision in the absence of any
new evidence, meant that the decision was prima facie reviewable on the
ground that fair procedures had not been observed.16 In so holding, he placed
particular emphasis on the stress caused to the applicant by the sudden
reversal of the decision.
Hogan and Morgan observed subsequently that since the facts of
Eviston were so unusual, while the judgment of the Supreme Court was
clearly a land-mark of some sort, the precise extent of its impact would be
uncertain.17 Over the last decade, however, the courts have consistently
relied on Eviston as authority for principle that the DPP is bound to apply
fair procedures in the exercise of his functions. In Carlin v Director of
Public Prosecutions,18 a case also concerning a reversal of the DPP’s initial
decision not to prosecute,19 Denham J held that “[it] is essential that [the
DPP] remain independent. However, the Director 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."20 The principle that the DPP should be subject to fair procedures in
the performance of his functions was also accepted in LO’N v Director of
Public Prosecutions,21 in G(E) v Director of Public Prosecutions,22 in Keane
v Director of Public Prosecutions,23and more recently in Murphy v
Ireland.24
16 McGuinness J, with whom Geoghegan J agreed, also concluded that there had been a want
of fair procedures, though Murray J, delivering a dissenting judgment, did not accept the
proposition that the DPP’s decision was reviewable on that ground.
17 Gerard Hogan and David Gwynn Morgan, Adminstrative Law in Ireland (4th ed., Round
Hall, 2010), at 811.
19 The applicant was ultimately unsuccessful in arguing a similar absence of fair procedures to
those in Eviston on the facts, as he failed to show that the DPP’s volte face had caused him any
significant stress.
20 [2010] 3 IR 547, at 550.
21 [2006] IEHC 184; [2007] 4 IR 481 [hereinafter L O’N].
22 [2008] IESC 61; [2009] 1 IR 801 [hereinafter G(E)].
23 [2008] IEHC 244; [2009] 1 IR 260. Here Eviston was expressly followed, on similar facts.
Hanna J held that the review of a decision not to prosecute, where the decision had been
expressly communicated to the applicants without qualification and this in the circumstances
added an additional layer of stress and anxiety above what would usually be expected to arise
as a by-product of being subject to a criminal investigation, was a breach of the applicants’
constitutional right to fair procedures.
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201
The decision of the Supreme Court in Murphy will be further
discussed below in relation to the development in the law on the duty to give
reasons as it applies to the DPP. Significantly, the findings of O’Donnell J
in relation to reasons were premised on the acknowledgment that, as a result
of Eviston and its application in subsequent cases, it had been established
that the grounds of review of a prosecutorial decision are not limited to the
grounds set out in State (McCormack). He acknowledged, in particular, that
“even a superficial review of decided cases over the last 15 years shows that
the Director’s decision is reviewable both in theory and in fact.”25 He also
noted that the courts have, in the meantime, “rejected any contention that a
decision of the Director is unreviewable and have, in exceptional but real
and justifiable cases, been prepared to review and if necessary quash such a
decision.”26 O’Donnell J was clear in stating that the decision in State
(McCormack) remains the law. However, he went on to state that, in light
of subsequent decisions of the Supreme Court quashing decisions of the
DPP, that the position expressed in State (McCormack) has been
significantly qualified, with the result that a decision of the Director is
reviewable if it can be demonstrated that it was reached mala fides or
influenced by improper motive or improper policy, or in other exceptional
circumstances.27 As observed by Edwards J in Marques v Director of Public
Prosecutions28 there has been as of yet no definitive guidance as to what
those “exceptional circumstances” may constitute, though decisions where
the courts have intervened to review decisions of the Director, such as
Eviston, LO’N and Keane may offer limited assistance.29
II. A Duty to Give Reasons?
A. The Traditional Approach
Traditionally, it was accepted that that the DPP could not be held to a duty
to give reasons in respect of her decisions. There are significant reasons of
public policy weighing in favour of this, the foremost of which include
concerns for national security and the integrity of the criminal justice
system. The legitimate public interest in preserving informant anonymity,
protecting interests of the Gardaí by keeping investigative strategies
25 [2014] IESC 19, at. [22], [23], and [38].
26 [2014] IESC 19, at [38].
27 [2014] IESC, at [22].
29 [2014] IEHC 443, at [41].
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202
confidential, and avoiding the disruption of ongoing investigations or
proceedings before the courts would be prejudiced by requiring the DPP to
give reasoned explanations of her decisions. Equally, it is necessary to
recognise that prosecutorial decisions can be, due to resource constraints
and considerations around the best deployment of manpower, to some extent
selective or strategic, and the imposition of a duty to give reasons requiring
the DPP to expose such strategic policy choices may be akin to inviting
criminals to counter-strategise according the DPP's unavoidable budgetary
constraints.30 Further, it may not be practicable for the Director to justify
every decision she makes, a point which was emphasised by the Supreme
Court in H v Director of Public Prosecutions,31 where the existence of
general duty to give reasons in respect of prosecutorial decisions was solidly
rejected on the basis that the DPP should not, in general, give reasons in any
individual case as to why he has not brought a prosecution because if he
does so in one case he must be expected to do so in all cases.32 In Flynn v
The Medical Council,33 Hogan J made the observation:
There is no doubt but that the issue as to whether a prosecutor or other
statutory personage is required to give reasons for their failure to take
either a criminal prosecution or regulatory action is a vexed and
troubling one. This is especially true in relation to criminal
prosecutions where it is generally thought indecorous for a prosecutor
to have to give reasons - certainly detailed reasons - for failing to
prosecute a particular case. If, for example, the Director of Public
Prosecutions was required to give detailed reasons for such a decision,
it might be damning of a particular accused while providing cogent
reasons for not acting. The Director might, for example, think that the
evidence was strongly suggestive of guilt, yet decline to prosecute
because of concerns regarding the reliability of a particular witness or
the admissibility of key evidence.34
30 Brian Foley “Judicial Review of the Director of Public Prosecutions—The Eviston Case”
(2003) 21 ILT 239.
31 [1994] 2 IR 589 ; [1994] 2 ILRM 285 [hereinafter H]
32 [1994] 2 IR 589, at 603.
34 [2012] IEHC 477, at [27].
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203
B. Murphy v Ireland
In light of the traditional reluctance to compel the DPP to provide reasons
for his or her decisions, the judgment of the Supreme Court in Murphy is
unusual. The applicant was charged under s.1078(2)(g)(i) of the Taxes
Consolidation Act 1997 with the offence of failing, without reasonable
excuse, to furnish tax returns over eight years from 1996 to 2004, an offence
triable either summarily or on indictment. The DPP opted for trial on
indictment and issued a certificate pursuant to s.46 (2) of the Offences
Against the State Act 1939, with the effect that the applicant’s case would
be sent for non-jury trial in the Special Criminal Court. The applicant in
Murphy challenged the decision to try him before the Special Criminal
Court on the basis that the DPP had refused to provide reasons why the
ordinary courts were inadequate to secure the effective administration of
justice in his case. The discretion of the DPP to send an accused forward for
trial in the Special Criminal Court pursuant to Part V of the 1939 Act has
been the subject of several challenges,35 none of which had been successful
prior to the decision in Murphy. In Murphy, however, the applicant was
successful in arguing that that when the DPP is making the sole decision on
whether a case which would otherwise be tried before a jury should be tried
before the Special Criminal Court, and where the Director’s decision is not
subject to appeal or review, then fair procedures require that the Director
should either provide reasons for that decision, or justify his refusal to do
so.36 Ultimately, as the applicant had not challenged the impugned
certificate within the time limited by the Rules of the Superior Courts, he
could no longer challenge its validity and his trial proceeded in the Special
Criminal Court.37 The judgment delivered by O’Donnell J for the Supreme
Court nonetheless gives rise to a number of interesting points of discussion.
The first point of interest is the reliance placed on Mallak v Minister
for Justice, Equality and Law Reform.38 In Mallak, Fennelly J, relying on a
wide range of authorities including Irish freedom of information
35 Savage and McOwen v Director of Public Prosecutions [1982] ILRM 385, O’Reilly and
Judge v Director of Public Prosecutions [1984] ILRM 224, Kavanagh v Ireland [1996] 1 IR
321.
36 [2014] IESC 19, at [44].
37 He was convicted on nine tax evasion charges in the Special Criminal Court in December
2015. Thomas Slab Murphy convicted of tax evasion,
slab-murphy-found-guilty-
of-tax-evasion-1.2469799> (visited 9 January 2015).
38 [2012] IESC 59; [2012] 3 IR 297; [2013] 1 ILRM 73 [hereinafter Mallak].
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legislation,39 Article 296 of the Treaty on the Functioning of the European
Union, Article 41 of the Charter of Fundamental Rights and the case-law of
the Irish and UK courts, identified a duty to give reasons generally
applicable to administrative decision-making:
In the present state of evolution of our law, it is not easy to conceive
of a decision-maker being dispensed from giving an explanation
either of the decision or of the decision-making process at some stage.
The most obvious means of achieving fairness is for reasons to
accompany the decision. However, it is not a matter of complying
with a formal rule: the underlying objective is the attainment of
fairness in the process. If the process is fair, open and transparent and
the affected person has been enabled to respond to the concerns of the
decision-maker, there may be situations where the reasons for the
decision are obvious and that effective judicial review is not
precluded.
Several converging legal sources strongly suggest an emerging
commonly held view that persons affected by administrative decisions
have a right to know the reasons on which they are based, in short to
understand them.40
O’Donnell J recognised in Murphy however that this expansive statement
does not fully reflect the overall tenor of the judgment. He alluded to the
fact that though s. 18 of the Freedom of Information Act 1997 allowing
reasons to be obtained from the head of a public body pertaining to an act
of that body was of general applicability to the Minister for Justice, Equality
and Law Reform, the same is not true of the DPP in respect of prosecutorial
decisions by virtue of s. 42 (f) of the 1997 Act hence his analysis that:
Mallak undoubtedly brings the common law on the duty to give
reasons into line with the obligations of statute, but it does not address
the question whether the common law requires decision makers to go
further than the statutory requirement. Put another way, the
considerations which underpin the limitation and the scope of the
statutory right to reasons may also be effective at common law.41
39 At the point at which Mallak was decided consisting of the Freedom of Information Act 1997
as amended by the Freedom of Information (Amendment) Act 2003, both of which have since
been repealed by the Freedom of Information Act 2014.
40 [2012] IESC 59, at [66].
41 [2014] IESC 19, at [40].
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205
Nonetheless, the judge considered that the possibility for the DPP to justify
her refusal to give reasons where fair procedures would otherwise call for
their disclosure in the manner contemplated by Fennelly J in Mallak42 would
be sufficient to protect the public policy interests underpinning the
exclusion of prosecutorial decisions from the statutory right to reasons
under the 1997 Act.43
The reliance on Mallak is significant because it marks a departure
from the reasoning of the Supreme Court in H, where it was held that the
duty to give reasons established in International Fishing Vessels Ltd v
Minister for the Marine (No. 2)44 could not be applicable to decisions of the
DPP, because the duty recognised in International Fishing is based on the
premise that the administrative decision-maker to which it can apply is
generally reviewable, which, in the view of the Supreme Court in H, the
DPP was not. Further, in H it was observed that “[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 DPP] obviates the
necessity to disclose reasons.” Full judicial review of an administrative
decision (“full” review taken as meaning review where all of the usual
grounds, substantive and procedural, are available) is impossible without
adequate provision of reasons. However, it has long been accepted that an
enquiry into the internal decision-making processes of the DPP’s office is
one which the courts should embark on with great reluctance, if at all. The
reference to the general duty of reasons expounded in Mallak, coupled with
O’Donnell J’s expansive observation that “even a superficial review of
decided cases over the last 15 years shows that the Director’s decision is
reviewable both in theory and in fact,” initially seems quite a dramatic
development.
This observation must, however, be read together with his earlier
acknowledgement that the cases where the courts have exercised their
review jurisdiction in respect of the DPP in the absence of mala fides or
improper purpose in the past have all involved “exceptional circumstances.”
It appears that this could be interpreted in two ways. The first is that the
Court was making the general observation that the instances where judicial
review did proceed were cases where the facts were somehow unusual, ie
the reference to exceptional circumstances is merely descriptive.
Alternatively, it could be read as requiring the existence of exceptional
42 [2012] IESC 59, at [77].
43 [2014] IESC 19, at [34].
44 International Fishing Vessels Ltd. v Minister for the Marine (No. 2) [1991] 2 IR 93
[hereinafter International Fishing].
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circumstances to form one limb of a test to determine whether the DPP is
amenable to review in the specific case, which the applicant has to prove.
On that reading, it would seem that full judicial review, which may or may
not require the giving of reasons, can therefore only be undertaken in
circumstances which meet a threshold of exceptionality.
The willingness of the court to innovate and apply a duty to give
reasons flowing from Mallak in the specific context of a decision to try the
applicant in the Special Criminal Court is also surprising. In Savage &
McOwen v Director of Public Prosecutions,45 for example, it was observed
that requiring the DPP to furnish reasons in respect of a decision to issue a
certificate under s. 46 (1) of the 1939 Act would have the effect of vitiating
the entire subsection. This is a fair comment in the sense that if it the
legislation deems it sufficient that the only reason given should be that the
ordinary courts are inadequate to secure the effective administration of
justice and the preservation of public peace and order in relation to the trial
of a particular person on a particular charge, then it runs contrary to the
intention of s. 46 (1) to go behind it to seek fuller reasons for the Director’s
decision. Equally, given the wording of the subsection, and the fact that the
purpose of the Special Criminal Court is to deal with terrorist offences and
organised crime, the issuance of a certificate pursuant to s. 46 (1) would
usually imply that the case involved some element of subversive criminal
activity. In light of this, one could speculate that it might have been open to
the court to say that a decision of the Director to certify that an accused be
tried in the Special Criminal Court pursuant to s. 46 (1) was one where, as
envisaged by Murray CJ in Meadows v Minister for Justice, Equality and
Law Reform, the rationale could be deemed “patent from the terms of the
decision or capable of being inferred from its terms and its context”46 and
thus did not require more explicit reasoning. However, O’Donnell J
emphasised the importance of the right to trial by jury enshrined in Art. 38.1
of the Constitution as a fundamental right of the citizen and a constitutional
obligation on the State in those cases to which it applies,47 and thus a
decision of the DPP which has the effect of removing a case which would
otherwise be tried by a jury to the Special Criminal Court alone would
therefore be one which must comply with the constitutional requirements of
procedural fairness.48 Consequently, a duty to give reasons in respect of the
46 [2011] 2 ILRM 157, at 177-178.
47 [2014] IESC 19, at [15] to [17].
48 [2014] IESC 19, at [42].
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207
DPP’s decision could be found to apply even “at the end of the spectrum
where review is most limited and attenuated.”49
Lastly, it is notable that if the applicant in Murphy had challenged the
certificate in time, and therefore been allowed to benefit from the
implications of O’Donnell J’s judgment, the DPP would have been required
to provide him with reasons, or justify why those reasons could not be made
public. Presumably, O’Donnell J must have foreseen that in the unlikely
case where reasons were voluntarily provided, the applicant may have been
able to mount a challenge to the DPP’s decision based on unreasonableness.
This would imply that in rare circumstances, the DPP may be subject to
substantive review, generally by reference to the tests outlined in the leading
Irish authorities State (Keegan) v Stardust Victims Compensation Tribunal50
and O’Keeffe v An Bórd Pleanála.51 Where constitutional or fundamental
rights are at issue, however, the post-Meadows test of reasonableness with
integrated proportionality analysis is the standard of reasonableness which
would likely apply. If the judge did contemplate that a decision of the DPP
could reviewed by reference to the post-Meadows standard, which is
generally accepted to represent a more intense standard of review involving
some degree of scrutiny of the merits of the decision, how did he envisage
the manner in which reasonableness review incorporating proportionality
should function in the context of the extreme deference afforded Office of
the DPP? While that question, in the context of this discussion at least, must
remain purely rhetorical, it does go to illustrate the idea that the recognition
of a duty to give reasons in Murphy, however limited, may require future
courts to recalibrate the level of deference generally enjoyed by the Office
of the DPP.
III.!Litigation post-Murphy
There have been, to date, at least two cases where Murphy was relied upon
in an attempt to compel the DPP to provide reasons for a decision not to
prosecute, namely the 2015 decisions of the High Court in Damache v
Attorney General,52 and in Attorney General v Marques.53 Both concerned
judicial review actions taken in the context of extradition proceedings,
where the applicants were attempting to block their extradition to the United
49 [2014] IESC 19, at [41].
51 [1993] 1 IR 39; [1992] ILRM 237 [hereinafter O’Keeffe].
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States for trial by seeking to have the decision of the DPP not to prosecute
them in Ireland quashed on various grounds. In Damache, though extensive
submissions were made regarding a potential duty to give reasons in light
of Murphy, the reasons point finally did not fall to be decided by the High
Court.54 In Marques, however, Donnelly J gave detailed consideration to
how the Supreme Court judgment in Murphy should be interpreted and
applied.
The applicant in Marques was charged in the US with a number of
offences involving the distribution of child pornography, and the US
authorities requested that Ireland extradite the applicant to their jurisdiction.
The DPP declined to prosecute the applicant in Ireland, and so in an attempt
to block his imminent extradition, he applied to the High Court seeking an
order of certiorari to quash the DPP’s decision. He sought to claim that the
DPP’s decision not to prosecute him in this jurisdiction was an abdication
of her function, that it was disproportionate, unreasonable and amounted to
a failure to vindicate his right of access to the courts and the right to fair
procedures. As a starting point, Donnelly J accepted that the decision in
Murphy compels the court to address the reviewability of the DPP’s decision
in light of the State (McCormack) as qualified in Murphy, by reference to
three questions:
1.!Is there anything in the evidence from which to reasonably infer
that the DPP’s decision not to prosecute was perverse, mala fide or
the result of improper policy or motive?
2.!In the absence of any evidence of such improper policy or
motivation, can the court infer such impropriety?
3.!Are there exceptional circumstances which render the decision not
to prosecute reviewable?55
An affirmative answer to any of those three questions will have the effect
of opening the decision of the DPP to review. This is particularly important
to the Court’s analysis of the ratio in Murphy:
The Supreme Court in Murphy, by referencing the constitutional right
to trial by jury, identified a constitutional necessity to give reasons in
54 Of particular interest are the outline arguments of the amicus curiae in the case, the Irish
Human Rights and Equality Commission, who considered that DPP should have given reasons
in the context of the case: decided
director-of-public-prosecutions-other/> (visited 9 January 2015).
55 [2015] IEHC 798, at [11.56].
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209
that case. The decision identified the limited nature of the reason that
would have to be given in that case (even contemplating that no reason
may be given if it would impair national security). In my view, it is in
this limited context that Murphy has extended the law.
That paragraph, taken on its own, could easily be mistaken to mean that the
ratio in Murphy was limited to the principle that a duty to give reasons could
only arise where a constitutional right is at issue. Read in context however,
the Court’s clear inference is that the exceptional circumstances in Murphy
arose because the DPP’s decision had the effect of depriving the applicant
of the constitutional right to trial by jury. Therefore it is submitted that the
ratio in Murphy as understood in Marques, expressed more simply, is that
exceptional circumstances, which include but are not limited to the
deprivation of a constitutional right may give rise to a constitutional
necessity to give reasons of a limited nature.56
This reading would appear to accord with the view expressed by
Hardiman J in Dellway Investments Ltd. v National Assets Management
Agency,57 the quintessential decision on fair procedures in this jurisdiction
in recent years, which considered the threshold at which the constitutional
right to fair procedures is triggered. The unresolved question in that case
was whether the operation of a constitutional right to fair procedures to
cases where other constitutional rights are potentially affected, or whether
the right to fair procedures is a stand-alone right in itself, triggered as soon
as an individual is affected or adversely affected by a decision and
functioning independently of other constitutional rights. Different views on
that point were expressed in each of the judgments, but the majority view
appears to be that there is no requirement that some other constitutional right
be threatened before the right to fair procedures is engaged.58 This reading
of Dellway has recently met approval in the High Court decisions in In L(A)
v Minister for Justice and Equality59 and Javed v Minister for Justice and
Equality60 where Dellway was taken as authority for the proposition that
there is a constitutional right to fair procedures in the making of a
discretionary decision by a public official or officials, based on the status of
56 [2015] IEHC 798, at [11.88].
58 See Ailbhe O’Neill “Fair procedures – an inviolable constitutional requirement?” (2011)
33(1) DULJ 319.
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the person claiming such fair procedures as a person who is or may be
“affected” or “adversely affected” by such a decision.61
Finally, the suggestion that the decisions in Meadows, Mallak and
Murphy had formed “the triumvirate of developing authority in regard to the
duty to give reasons”62 did not appear to particularly impress the court in
Marques. In the view of Donnelly J, the recognition by O’Donnell J in
Murphy that Mallak brings the common law into line with the statutory
freedom of information regime, but is silent as to whether the common law
duty places any extra obligation on administrative decision-makers to whom
the statutory scheme normally would not apply in full,63 should be read as
meaning that the general principle in Mallak did not have the effect of
nullifying the special position of the DPP in terms of the reviewability of
her decisions and the requirement to give reasons.64 Further, the reference
Mallak in O’Donnell J’s judgment, where it was considered that the DPP
may be required to justify her refusal to provide reasons, is not in fact
extension of the duty to give reasons: the Supreme Court did not mean that
a statement as to why no reasons are being given should apply in every case
where the DPP takes a stance.65 She held finally, that there was no unfairness
in the fact that the applicant was unable to advance specific arguments
regarding his extradition in the absence of reasons, as the exercise of the
DPP’s statutory function and the his request by the US for his extradition
are separate matters and thus the decision not to prosecute him under the
circumstances did not require review by the court on a different basis than
every other decision not to prosecute.66 On that basis, as the applicant could
not demonstrate that his circumstances displayed the necessary
exceptionality, the decision of the DPP in his case was not reviewable and
no duty to give reasons arose. Thus the overall impression left by Donnelly
J’s comments in Marques is that Murphy is to be read restrictively.
IV. Reasons, Reviewability, and the Scope of Review?
The duty to give reasons recognised in Murphy was held to be a requirement
of fair procedures in the circumstances of the case. In that regard, the
judgment goes some distance towards clarifying the content of the fair
61 [2014] IEHC 503, at [57].
62 [2015] IEHC 798, at [11.81].
63 [2014] IESC 19, at [40].
64 [2015] IEHC 798, at [11.88].
65 [2015] IEHC 798, at [11.90].
66 [2015] IEHC 798, at [11.96].
2016] Judicial Review of the Decisions of the DPP
211
procedures guarantee introduced by the Supreme Court in Eviston, the exact
nature of which had previously been relatively vague. In Eviston itself for
example, the favourable outcome for the applicant appears to have been
based for the most part on a sense of general unfairness in the manner in
which she was dealt with by the DPP, coupled with the acknowledgement
that the reversal of the Director’s decision not to prosecute her had caused
her significant stress. Similarly, in G(E) v DPP, fair procedures were
employed in a broad manner to explain why the applicant’s prosecution
should be restrained where the DPP had been forced to reviewed the charges
against him following the CC v Ireland67 and A v Governor of Arbour Hill
Prison68 and had substituted the original charge of attempted unlawful
carnal knowledge with the much weightier charge of rape. While those cases
are authorities for the general principle that the courts will intervene after
the fact where the DPP has ostensibly treated applicants unfairly, Murphy
identifies an instance where, though there was no initial prima facie
unfairness, the applicant had a right to reasons in order to satisfy himself
that the decision of the DPP sent him for trial in the Special Criminal Court
was well founded and, where the information gave indications to the
contrary, to enable him to challenge that decision. A similar result was
achieved on at least one occasion previously: in Cunningham v President of
the Circuit Court,69 the applicant was granted discovery of the DPP’s
correspondence relating to her case in order to satisfy herself that a delay of
over 6 years in initiating a prosecution had been justified.
Given that the public interest in effectively prosecuting crime weighs
substantially against transparency as a value in the exercise of the
prosecutorial discretion, the function of an obligation to give reasons as it
applies to the DPP is primarily to facilitate review. As observed by Murray
CJ in Meadows, the withholding of reasons for a decision can have the effect
that “the constitutional right of access to the courts to have the legality of
an administrative decision judicially reviewed could be rendered either
pointless or so circumscribed as to be unacceptably ineffective.” Thus the
duty to give reasons as an aspect of procedural fairness is also inherently
linked to the applicant’s right of access to the courts. In light of this, one
issue that arises in consideration of Murphy and Marques is the position of
applicants who, in order to demonstrate that their case falls within the
category of “exceptional circumstances” that warrant review, first need
access to the reasons upon which the DPP based his decision. From the
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212
decision of Donnelly J in Marques, it seems that a demonstration of
exceptional circumstances must come first, as the public interest requires
that restrictions on the reviewability of the DPP protect her from “routine
review.”70 That said, the question as to the existence of exceptional
circumstances may not be capable of being answered if the basic reasoning
of the DPP remains obscure to both the applicant and the Court. In Murphy,
O’Donnell J observed that the obligation to give reasons is “dependent upon
and a reflection of, the reviewability of the decision and the scope of that
review.”71 Equally, procedural fairness may not always require the
imposition on a decision-maker of a duty to give reasons.72 However, if it is
the case that a constitutional right to fair procedures is triggered as soon as
a person is “affected” or “adversely affected” by such a decision,73 then
review for procedural fairness, which may include an assessment whether
reasons are required in a given case, must necessarily be understood to fall
within the scope for review of the decision in question. It is therefore
respectfully submitted that the reviewability of even a decision of the DPP
on grounds of procedural unfairness should not be made to depend on the
case being shown to be in some way exceptional. The interpretation of
Murphy by the High Court in Marques goes too far in this respect.
Conclusion
If Eviston was a landmark decision as part of an argument against general
immunity,74 Murphy undoubtedly contributes to that argument, in that it
establishes a limited exception to the DPP’s traditional exemption from any
obligation to give reasons. Though the recent discussion of the case by the
High Court in Marques indicates that Murphy will be read restrictively, the
case is one of several over the last decade to contribute to the view that the
cloak of deference surrounding the DPP’s functions is growing ever thinner.
One recent indication that the opaque functioning of the DPP’s office may
be in the future be penetrated to a greater extent than before is the
transposition into Irish law of the EU Victim’s Directive75 on November
70 [2015] IEHC 798, at [11.101].
71 [2014] IESC 19, at [41].
72 [2012] IESC 59, at [66].
73 [2011] IESC 4, at [335].
74 Foley, note 30.
75 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012
establishing minimum standards on the rights, support and protection of victims of crime, and
replacing Council Framework Decision 2001/220/JHA.
2016] Judicial Review of the Decisions of the DPP
213
16th, 2015. Since October 2008 the Office of the DPP has on request given
reasons for decisions not to prosecute to the families of victims in fatal
cases. Under the Art. 6(3) of the Directive, victims of crime will have a right
to ask for reasons or a brief summary of reasons for all decisions made on
or after November 16th 2015, subject to some limited exceptions. Art. 11(1)
will allow victims to ask for an internal review of a decision not to prosecute
within 8 weeks of being informed of the decision, which will be carried out
by a lawyer who was not involved in making the original decision.76 An
accused person seeking review of a prosecutorial decision is not in the same
position as a victim of crime, and therefore clearly the policy behind the
Directive cannot apply by analogy.77 However it is relevant insofar as it
acknowledges a need for greater transparency on the part of the DPP’s
Office.78 If the “special protection” of the DPP can yield to the need to
vindicate the rights of victims to information about prosecutions that
involve them, then it could be argued in principle that it can also yield to the
need for those who are the subject of DPP decisions to have access to
judicial review, where this can occur without prejudice to third party
interests or the security of the State. It would appear that the decision in
Murphy, in recognising that the DPP may be subject to a duty to give reasons
of a limited nature, aligns to an extent with the recent trend towards greater
transparency regarding functions of the DPP. It is to be hoped, in light of
this trend, that the restrictive interpretation of Murphy by the High Court in
Marques will not be the approach followed in future decisions of the courts
concerning the scope of review of the DPP’s decisions.
76 Statement by Claire Loftus, Director of Public Prosecutions on the EU Victims Directive
(Office of the Director of Public Prosecutions, 2015)
015.11.16.pdf> (visited 30 January 2016).
77 See note 54, at [33].
78 Ibid.

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