High Court of Ireland Decisions

1. This matter comes before the Court pursuant to an Order of the 25 May 1998 whereby the Applicant was given leave to apply by way of an Application for Judicial Review for an Order of Prohibition prohibiting the Respondent from taking any further steps in criminal proceedings the subject matter of the application unless the Director of Public Prosecutions also prosecutes Thomas O'Driscoll for offences which it is alleged arise from the incident which gave rise to the prosecution against the Applicant.

The grounds upon which the relief is sought are that the Applicants claims that the Respondents have denied him equality before the law as provided by Article 40.1 of the Constitution and that the Respondent, denied the Applicant the right to fair justice and fair procedures as provided by Article 40.3 of the Constitution and, in addition, the Applicants claim that the Respondent failed to vindicate the personal rights of the Applicant as provided for in Article 40.3.1 of the Constitution insofar as the Applicant was grievously assaulted and no charge was instituted against the Assailant.

The Applicant was also given leave to seek the reliefs claimed on the grounds that the Respondents otherwise failed to comply with principles of natural and constitutional justice and basic fairness of procedures in selectively prosecuting the Applicant arising from an incident in which another party assaulted him.

The circumstances in which the application arises can be summarised as follows:

On the 7 July 1995 the Applicant was driving his car on the Cork/Macroom road. He claims that a Mr Thomas O'Driscoll ran in front of the car and when the Applicant stopped the car Mr O'Driscoll assaulted the Applicant and took the ignition keys of the car from him. The Applicant says that he was forced to defend himself and to defend his son and managed to recover the keys of the car. He says that when he sought to drive away Mr O'Driscoll thrust a wooden stake through the side window of the car. The Applicant says that he reported the matter to the Gardai at Macroom and made a statement. He says that some weeks later, he, the Applicant, was served with a summons to appear at Macroom District Court on the 20 September 1995 to answer a charge of assault on Thomas O'Driscoll.

The relief claimed by the Applicant is that the Court prohibit the Respondents from prosecuting the case against him until such time as similar proceedings are brought against Mr O'Driscoll.

I am satisfied that in effect what the Court is being asked to do is to exercise a supervisory function over the decision made by the Director of Public Prosecutions in this case which was to prosecute the Applicant and not Mr O'Driscoll. It is in my view well settled that the Court may only review his decision in certain limited circumstances. State (McCormack) v Chief Superintendent Curran, the Director of Public Prosecutions and Attorney General [1987] ILRM 225 is clear authority for the proposition that the power of the Court to review the decision of the DPP arises only if it is demonstrated that he reached the decision mala fide or influenced by improper motive or improper policy. In his Judgment Finlay CJ says "In regard to the DPP I reject also the submission that he has only got a discretion as to whether to prosecute or not to prosecute in any particular case related exclusively to the probate of value of the evidence laid before him. Again I am satisfied that there are many other factors which may be appropriate and proper for him to take into consideration. I do not consider that it would be wise or helpful to seek to list them in any exclusive way. If of course, it can be demonstrated that he reached a decision mala fide or influenced by an improper motive or improper policy then his decision will be reviewable by the Court. To that extent I reject the contention again made on behalf of the Respondent that his decisions were not as a matter of public policy ever reviewable by the Court.

In H v Director of Public Prosecutions [1994] 2 IR 589 O'Flaherty J said "However it is clear from the decision in the State (McCormack) v Curran that the discretion of the Director of Public Prosecutions is reviewable only in certain circumstances as set out by Finlay J at page 237 of the Report."

Kelly J in Landers v Garda Siochana Compensation Bond and others [1997] 3 IR 363 summarises the position as follows: "These decisions which are of course binding upon me demonstrate:

(a) That decisions of the Director of Public Prosecutions are reviewable by this Court.

(b) That such review may take place only if it is demonstrated that the Director of Public Prosecutions in making his decision did so mala fide or was influenced by improper motive or was influenced by improper policy or had abdicated his functions."

I am of the view that to succeed in this form of application it is necessary for the Applicant to discharge the onus of proof of showing that one of these circumstances arises. In the present case all that has been shown is that one party to the assault has been prosecuted and the other has not. Nothing is placed before the Court to give an explanation or reason for this decision. It is not known why the decision was made but more particularly it is not possible for the Applicant to establish to the satisfaction of the Court that it was made for one of the reasons which would entitle the Court to reasonably infer that the decision was perverse inspired by improper motives or that the Director had abdicated his functions.

Accordingly in my view the Applicant is not entitled to the relief claimed.