Keane v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hanna
• Judgment Date: 10 July 2008
• Neutral Citation: [2008] IEHC 244
• Court: High Court
• Docket Number: [2007 No. 1323 JR]
• Date: 10 July 2008

[2008] IEHC 244

THE HIGH COURT

[No. 1323 J.R./2007]

Keane v DPP

JUDICIAL REVIEW

BETWEEN

RALPH KEANE AND ELAINE KEANE

APPLICANTS

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S13

EVISTON v DPP 2002 3 IR 260 2002 1 ILRM 134

OFFICE OF THE DPP GUIDELINES FOR PROSECUTORS 2007 PARA 4.1

HOBSON v DPP 2006 4 IR 239

DUNPHY (A MINOR) v DPP 2005 3 IR 585

MCCORMACK, STATE v CURRAN 1987 ILRM 225

DPP v MONAGHAN UNREP CHARLETON 14.3.2007 2007 IEHC 92

H v DPP 1994 2 IR 589

O'CALLAGHAN, STATE v O HUADHAIGH 1977 IR 42

CONSTITUTIONAL LAW

Fair procedures

Prosecution - Reversal of decision not to prosecute - Decision not to prosecute given without indication of possible reversal - Lack of new evidence to ground reversal - Reversal of decision cause of great stress and anxiety to applicants - Whether reversal of decision not to prosecute in breach of fair procedures having regard to all circumstances - Lack of reasons for reversal State (O'Callaghan) v. O'hUadhaigh [1977] IR 42; Hobson v DPP [2005] IEHC 368, [2006] 4 IR 239 and Eviston v DPP [2002] 3 IR 260 applied - Relief granted (2007/1323JR - Hanna j - 10/7/2008) [2008] IEHC 244

Keane v DPP

CRIMINAL LAW

Director of Public Prosecutions

Reversal of decision not to prosecute - Decision not to prosecute given without indication of possible reversal - Lack of new evidence to ground reversal - Whether Director subsequently prevented from bringing charges - Whether applicants prejudiced in raising defence as a result of decision not to prosecute - Whether required to give reasons for reversal - State (O'Callaghan) v. O'hUadhaigh [1977] IR 42; Hobson v DPP [2005] IEHC 368, [2006] 4 IR 239 and Eviston v DPP [2002] 3 IR 260 applied - Relief granted (2007/1323JR - Hanna j - 10/7/2008) [2008] IEHC 244

Keane v DPP

Facts: The applicants were charged with offences pursuant to the Non Fatal Offences Against the Person Act 1997 for failing to maintain a boiler, resulting in a death. The DPP had reversed his decision not to prosecute the applicants after a number of months. The applicants alleged that the recommencement of the proceedings in the absence of new evidence breached their right to fair procedures and their constitutional rights. The delay in recommencing proceedings was alleged to be unfair and prejudicial.

Held by Hanna J. that no caveat was given in the decision not to prosecute and significant distress had been suffered by the applicants. An injunction would be granted restraining any further prosecution of the applicants.

Reporter: E.F.

1 Mr. Justice Hanna on the 10th day of July, 2008

2 The applicants Ralph Keane and Elaine Keane are a married couple. They are medical practitioners and are resident in Limerick, although natives of Gort, Co. Galway. They were granted leave to apply for judicial review against the respondent by the High Court (Peart J.) The applicants are seeking judicial review of a decision by the respondent to prosecute them under Section 13 of the Non-Fatal Offences Against the Person Act, 1997. They also seek an injunction preventing further advancement of the prosecution.

Background Facts

3 The applicants own a dwelling house situate at Cloonahaha, Ennis Road, Gort in the County of Galway. In May 2005 the dwelling house was rented to one Marilda Luiza Dos Santos by Bridget Piggott, the mother of the second-named applicant and the mother-in-law of the first-named applicant, on their behalf. On the 1 ^st of December, 2005, two Brazilian men identified as Roberto Perna Ramos and Erly Rodrigues Da Silva were found dead within the dwelling house owned by the applicants. The applicants were charged under Section 13 of the Non-Fatal Offences Against the Person Act, 1997, with intentionally or recklessly engaging in conduct by failing to maintain a boiler or to provide adequate ventilation, creating a substantial risk of death or serious harm to another. The property in which the tragedy occurred was adjacent to certain lands which had been transferred to the first named applicant by his father back in the early 1970s. The actual house was acquired by the applicants in 1999. It was used as a rental property and Bridget Piggott, referred to above, managed the lettings.

4 A number of affidavits have been filed on behalf of the parties herein. The first named applicant has filed three affidavits on his behalf and on behalf of the second named applicant. For the respondent, affidavits have been filed by Superintendent James O'Connor of Gort garda station, Mr. John Rohan, a solicitor in the Chief Prosecutions Solicitors Office and by Detective Garda Martin Glynn, also of Gort garda station and who played a key role in the investigation of the matters with which we are concerned. There was, indeed, a very detailed investigation of the circumstances leading to the tragic deaths of these two men including, inter alia, the compilation of detailed forensic expert evidence concerning the central heating boiler, the alleged source of allegedly lethal fumes which, the prosecution contends, brought about their demise. The principal affidavit of the first named applicant and that of Superintendent O'Connor, deal in some detail with the evidence which undoubtedly would be germane to the trial of the charge facing the applicants. I feel, however, that it would be inappropriate for this Court to pronounce in any way on the respective strengths or weaknesses (if such there be) of the potential criminal trial from either side's perspective. Accordingly, I do not propose to do so and will assume for the purposes of this judgment that there is a case which could proceed and that the same could be robustly defended.

5 There does not appear to be any dispute as to whether the applicants fully co-operated with the investigation. On the 1 ^st December, 2005, the first named applicant was invited by Detective Garda Glynn to make a statement. He attended at the garda station in Gort and met Garda Michael Carroll, to whom he made a statement which was in the form of answers to specific questions put to him by the guard. The guard then wrote a statement which was read over and signed by Mr. Keane.

6 On the 14 ^th December, 2005, a further telephone request for a statement was agreed to by Mr. Keane. Detective Garda Glynn drove to Limerick, to where the applicants reside, and a similar format was engaged in and a further statement was signed.

7 Finally, on the 13 ^th March, 2006, a third statement was made, again in Limerick and the same interview technique was employed. Garda Glynn was accompanied on that occasion by Garda Paul McWalter.

8 Mr. Keane says that on one of these occasions, Detective Garda Glynn mentioned certain problems relating to the operation of the boiler in the dwelling house and that the matter was being referred to the Director of Public Prosecutions. He does not specify when this occurred. He goes on to say that Detective Garda Glynn expressed the view that he would be surprised if anything came of it. Nonetheless, it is evident that the applicants were aware that they were in the frame for a potential prosecution.

9 Given the background circumstances, one can readily understand that the frightful events of the 1 ^st December, 2005 must have visited very great anxiety and distress on the families and friends of the victims, and, I have no doubt, on the applicants as well. We are told that Mrs. Keane, the second named applicant, is fragile of health. Added to the understandable human reaction to what had occurred, there was also the realisation that Mr. and Mrs. Keane could face criminal prosecution. In his principal affidavit, Mr. Keane expresses the situation thus at para. 14:-

"The tragic events ... caused great upset, anxiety and distress to me but more so to my wife whose health is fragile. This upset, anxiety and distress was aggravated by the threat of criminal prosecution and resulting from all of this I believe that there was a deterioration in the health of my wife. While emphasising the difficulty caused to my wife, I do not wish to diminish the level of my own anxiety and distress arising from the death of the deceased men and from the threat of criminal prosecution intimated to us by the investigating gardaí."

10 I am satisfied that the above paragraph fairly represents the state of mind of Mr. and Mrs. Keane up to early April 2006. There is no dispute as to what happened next. A decision was taken in the office of the Director of Public Prosecutions that no prosecution would ensue in this matter. That decision was communicated on the 10 ^thApril. 2006, by Detective Garda Martin Glynn to the first named applicant who then immediately informed his wife. It is evident that this lifted a considerable burden from them both, and, insofar as exposure to criminal prosecution was in the offing, as far as they were concerned, that was that.

11 It is common case that the decision of the Director was conveyed by Detective Garda Glynn without any caveat as to the possible review of the decision. Equally, it is accepted on behalf of the respondent that no fresh evidence was received between the communication of the DPP's decision to the Keanes and what subsequently transpired.

12 Throughout the hearing of this case, it was maintained on behalf of the respondent that he is entitled to revisit decisions not to prosecute and to subsequently direct the bringing of charges. Such an occurrence came to pass. In an affidavit sworn on behalf of the respondent, Mr. John Rohan, solicitor, says that the case was brought to the Director's attention as a result of an internal review of recent decisions pertaining to prosecutions. No external request for a review was received. A decision was taken to notify the applicants that the file was...