 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Keane & Anor -v- D. P. P. [2008] IEHC 244 (10 June 2008) URL: http://www.bailii.org/ie/cases/IEHC/2008/H244.html Cite as: [2008] IEHC 244, [2009] 1 IR 260 |
||
[New search] [Help]
|
Judgment Title: Keane & Anor -v- D. P. P. Composition of Court: Judgment by: Hanna J. Status of Judgment: Approved |
Neutral Citation Number: [2008] IEHC 244 THE HIGH COURT JUDICIAL REVIEW 2007 No. 1323 J.R. BETWEENRALPH KEANE AND ELAINE KEANE APPLICANTS AND THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT JUDGMENT delivered by Mr. Justice Hanna on the 10th day of June, 2008The 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 s. 13 of the Non-Fatal Offences Against the Person Act, 1997. They also seek an injunction preventing further advancement of the prosecution. Background Facts 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 1st 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 s. 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. 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. There does not appear to be any dispute as to whether the applicants fully co-operated with the investigation. On the 1st 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. On the 14th 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. Finally, on the 13th 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. 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. Given the background circumstances, one can readily understand that the frightful events of the 1st 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:-
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. 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 under review and, according to Mr. Rohan, to invite them to furnish any additional information that they might want the Director of Public Prosecutions to consider. In his affidavit, Detective Garda Martin Glynn says that on the 13th August, 2006, the Director of Public Prosecutions informed the State Solicitor, Mr. William Kennedy, that the question of a prosecution was being further considered. The letter was passed on to Detective Garda Glynn through his Superintendent and he says that he made sure to inform the first named applicant about this development. He believes he telephoned Mr. Keane shortly after he received this notification. It appears that this notification occurred in September, 2006. Mr. Keane says that he was contacted on the 4th September, 2006, by Detective Garda Glynn, as he puts it “out of the blue”. He says he was informed by the garda, to his great shock, that the matter was being looked at again and that he was anxious to obtain further statements from the applicants. Mr. Keane says that he was unaware of any contact between the respondent and the State Solicitor. Mr. Keane asserts that he was unaware of any review procedure in the Director’s office. Clearly, rightly or wrongly, Mr. and Mrs. Keane were of the view that the information communicated to them in April, 2006 was the end of the matter as far as the criminal law was concerned. There is dispute between the parties as to whether or not the applicants were offered an opportunity to make further submissions to the Director, something which is asserted on behalf of the respondent. Not so, says Mr. Keane. Further statements were sought and that was as far as it went. In early December 2006, Detective Garda Martin Glynn informed the applicants that the respondent would be prosecuting the applicants, notwithstanding the fact that no new evidence had emerged. A letter sent from the solicitors for the applicants to the Superintendent in Gort dated 29th of March, 2007, noted concern that the delay in prosecuting may prejudice the applicants’ defence. On 28th of May, 2007, the charge was laid against the applicants in Gort District Court. On this occasion, the applicants highlighted the previous representations given to them by Detective Garda Martin Glynn that they would not face charges. It availed them naught. Summary of Arguments by Applicants: The applicant’s central argument presented by Mr. Giblin S.C., is that the unequivocal initial communication by the respondent that there would be no prosecution and that the assurance that garda enquiries were complete constituted a final and conclusive decision. The review of this decision resulting in the instigation of the criminal proceedings breaches the applicant’s constitutional rights, in particular the right to fair procedures when considered in the overall context of all that occurred. Notwithstanding the power of the DPP to review decisions, it is argued that such a review cannot be performed after the communication that prosecution will not take place where no reference has been made as to the possibility of a review. Such a review without caveat is oppressive and contrary to justice and thus reviewable (see Eviston v. DPP. [2002] 3 IR 260). The applicants also argue that recommencing proceedings in the absence of new evidence breaches their legal and constitutional rights and in particular the right to fair procedures. A review in the absence of new evidence was deemed to be “unfair and prejudicial”. In Eviston it was held that a reversal of a decision not to prosecute could not occur “save where new factors had come to light which were not present when he made his original decision”. [2002] 3 IR 260, at p. 296. The respondent has wrongly assumed an unfettered right to reverse his decision. A claim of prejudice to the applicants is advanced, consequent upon the respondent’s failure to preserve probative evidence. I shall specify the matters referred to in summarising the respondent’s arguments. In brief, the decision not to prosecute was communicated in April, 2006; the review of this decision was communicated in September, 2006. The applicants argue that fingerprint evidence is no longer available due to this lapse of time. It is submitted that this five month period has further prejudiced the applicants’ defence and has created a risk of injustice. In particular the applicants assert that they declined to appoint experts or conduct tests on foot of the representation that they would not face prosecution. The applicants also claim that the decision to review with no warning exacerbated the stress and anxiety suffered and claim that this is a breach of fair procedures as outlined in Eviston. Finally it is claimed that the Guidelines for Prosecutors issued in October, 2007 by the Office of the Director of Public Prosecutions were not complied with. Specifically para. 4.1 outlines the potential grave effects from a decision to prosecute or not. As such it was submitted that substantial grounds or fresh evidence must support the reversal of a decision not to prosecute. Summary of Arguments by the Respondent: Mr. Micheal O’Higgins B.L. on behalf of the respondent submitted, in the first instance, that the decision reached by the DPP was not reviewable at all. The respondent asserted that the applicants would receive a fair trial and that constitutional justice had not been breached. However, were the decision held to be reviewable because of unfair procedures, the respondent accepted that whilst the initial decision not to prosecute did not allude to the possibility of a review, this did not preclude the DPP from bringing charges. Eviston was cited as authority for the implicit power to review decisions not to prosecute despite a lack of new evidence. As such, any decision given by the DPP not to prosecute cannot constitute a “final and conclusive” decision. In Eviston the applicant was informed by the respondent that she would not be prosecuted for dangerous driving causing death. The respondent subsequently decided to prosecute the applicant without new evidence on foot of a letter from the victim’s father. The existence of political factors in the Eviston case was significant in the granting of an order prohibiting the trial of the applicant. The respondent argues that notwithstanding the order prohibiting trial, which was granted due to the particulars of that case, Eviston is authority for the DPP’s right to review a decision even in the absence of further evidence. The respondent relies on Hobson v. Director of Public Prosecutions [2006] 4 I.R. 239 in support of the proposition that decisions by the DPP may be reviewed even where no caveat has been added to the original decision. Due to this, the respondent argues that some other prejudice must be established to ground the applicants’ claim. As established in Eviston, the DPP enjoys a right to review or reverse a decision not to prosecute notwithstanding the fact that no new evidence has been discovered. As such, this function of the DPP has been afforded a level of special protection by case law and in Dunphy (a minor) v. Director of Public Prosecutions [2005] 3 IR 585, it was held that this protection means that the onus of proof is on the applicant. Further, the decision to prosecute was held to be reviewable only in very limited circumstances. The case of State (McCormack) v. Curran [1987] I.L.R.M. 225 at p. 237, highlighted that review which is necessary in instances of mala fides, improper motive or improper policy but not where there exists “the reasonable probability of a proper and valid decision”. Director of Public Prosecutions v. Monaghan [2007] IEHC 92 and H v. DPP [1994] 2 I.R. 589 were cited in support. The respondent submits that the facts of this case fall within this special protection. As such, the onus rests with the applicant to establish mala fides, improper motive or improper policy. As to the issue of whether communication of the decision not to prosecute could preclude a subsequent prosecution, on the basis of Eviston it is argued that the mere communication of such a decision does not entitle the applicant to a prohibition of subsequent proceedings. Even communication without caveat as to possible review of the decision does not so entitle. In any event, since Eviston, such a possibility is common knowledge. Furthermore, it was stated that it is accepted policy that the reversal of a decision taken by the respondent does not have to be explained. The respondent denies that he has acted ultra vires or employed improper policy. The respondent denies that the initial representation made to the applicants that they would not be prosecuted resulted in prejudice. The applicants had contended that the communication that the DPP would not prosecute resulted in prejudice on two grounds:-
The applicants’ claim that they have suffered stress and anxiety due to the respondents’ decision to prosecute is dismissed as immaterial to the judicial review proceedings. On an ancillary note, it is argued that the applicants are focusing on the merits of the prosecution over the procedures followed. The merits of the criminal trial are not relevant to the judicial review proceedings. The respondents conclude that fair procedures were followed and as such no prejudice occurred. In this case, the DPP exercised his right to review an earlier decision not to prosecute. He was completely within his rights so to do. No new evidence had come to light and such was not necessary to entitle him to reverse his earlier decision. It is in the public interest, as a general principle, that the DPP enjoys the facility to revisit such matters when appropriate. When argument was finally distilled, I did not understand the applicants to demur from this general proposition. Further, I should observe that, not surprisingly, no question of improper motivation or mala fides arises. In the Eviston case, Keane C.J. reflected on the role of the DPP. The Director is not a judge exercising judicial or quasi judicial functions. When he decides to prosecute, or not, as the case may be, he is not obliged to give reasons. However, the shield of protection afforded to the Director in the exercise of his statutory functions can be penetrated. The Director must have due regard to the constitutional requirements of fairness and fair procedures. Citing part of the judgment of Finlay P. (as he then was) in the State (O’Callaghan) v. O’hUadhaigh [1977] I.R. 43, Keane C.J. says at pp. 295-296:-
It is not suggested in this case that the respondent has acted with mala fides, or that he was influenced by an improper motive or policy in reversing his original decision not to prosecute the applicant. The contention on her behalf is that, having arrived at a decision not to prosecute her and communicated that decision to her, he could not as a matter of law subsequently reverse that decision, save where new factors had come to light which were not present when he made his original decision. It is undoubtedly the law that the respondent is entitled to review an earlier decision by him not to prosecute and to substitute for the earlier decision a decision to prosecute, at least in a case were he has not already communicated his earlier decision to the putative accused. Thus, having initially decided not to prosecute and so informed one of his officers who had given him advice on the matter, he may subsequently on reflection come to a different view and decide to prosecute. If, for whatever reason, it became public knowledge that, in such a case, the DPP had reversed an earlier decision not to prosecute, it would be unthinkable that his later decision should be reviewable on that ground alone. Again, his position can be contrasted with that of a court or quasi-judicial tribunal which is normally functus officio once the decision in a particular case has been pronounced. It follows that the respondent is entitled to review an earlier decision made by him not to prosecute and to arrive at a different decision. Nor is he obliged in either instance to give reasons for his decision. The respondent was thus entitled, as a matter of policy, to adopt a procedure of reviewing earlier decisions made by him. Clearly, it could not be suggested that such a policy was in any sense improper: on the contrary, given the consequences for both the victims of crime and those suspected of having committed a crime of a decision to prosecute or not to prosecute, such a policy could only be regarded as being in the public interest, since, in the absence of an appeal procedure, it provides at least some opportunity to the DPP of reversing decisions which, on further consideration, appear erroneous.”
The late Mr. Moynihan’s father wrote to the Director of Public Prosecutions on the 16th December, 1998, expressing his and his family’s deep regret and hurt at the turn of events. On the 23rd December, 1998 a District Court summons was issued against Mrs. Eviston, charging her with dangerous driving causing death. In correspondence between that applicant’s solicitor and the Office of the Director of Public Prosecutions, the then respondent, refused to give any reason for the change of decision. That in a very small nutshell outlines what occurred in the Eviston case but sufficient, I hope, to preface the concluding remarks of Keane C.J. at p. 299:-
I cannot find that there is any prejudice on this aspect of the case. Further, the presence or absence of fingerprints on the boiler switch seems, to my mind, to be immaterial to the charge facing the applicants. Turning to what is in reality, the applicant’s main case, as I have already observed, the Director of Public Prosecutions is entirely within his rights to revisit decisions taken not to prosecute and to subsequently reverse them. This can be done without a requirement for new evidence and he does not have to give reasons for changing his mind. Even where an initial decision not to prosecute is communicated to the party concerned and later reversed, this would not, of itself, entitle that party to halt the prosecution. Similarly, even when (as occurred here) the party charged had not been told of the internal review procedure, that too would not afford grounds stopping a prosecution as a matter of course. As the Supreme Court makes clear, ultimately each case falls to be decided upon its own facts. It seems to me that the following facts are material to the consideration of this Court. Firstly, it is clear that at an early stage, Mr. and Mrs. Keane were made aware of the fact that they were potential defendants in criminal proceedings. I accept their evidence that this was a matter of considerable distress and anxiety to them. I also accept (it is not disputed) that Mrs. Keane was, at all material times, suffering from frail health and that the stress and strain, impacted heavily upon Mr. Keane, and all the greater on his wife. Perhaps some solace was derived from Detective Garda Glynn’s opinion, which I accept was expressed, that the case might not be proceeded with. However, I have no evidence as to the extent (if any) that this acted as a sort of balm on the anxiety experienced by Mr. and Mrs. Keane, nor indeed if it rendered all the more shocking the subsequent reversal of the decision not to prosecute. On the available evidence, I consider it safer not to weigh it significantly in the balance. I am satisfied that Mr. and Mrs. Keane were greatly relieved when the decision not to prosecute was communicated to them. I am satisfied that no caveat was given. The failure to give a caveat does not, as a matter for course, entitle an applicant to succeed. However, it seems to me that as a matter of common sense, not to mention simple humanity, some mention should be made of the possibility of review of a decision not to prosecute. In this case, the applicants were fully co-operative with the gardaí. Detective Garda Glynn was a conduit between the machinery of State and Mr. and Mrs. Keane. He was the private face of the prosecutorial/investigative arm of the State. He travelled on two occasions to Limerick to interview Mr. Keane. The news imparted in April, 2006 must have been an overwhelming relief, coming as it did from him. There was no exchange of correspondence between solicitors at this stage. It would, in my view, be somewhat unreal to import into this state of affairs, the minutiae of the Eviston case regarding the possibility of a review of the decision not to prosecute. A policy decision taken after a period of considerable investigation, was communicated to them without qualification, by, in effect, the prosecution spokesman and they were entitled to rely on it. Yet again, that, of itself, is not enough to prevent the prosecution process. Having been informed of the decision of the Director of Public Prosecutions in April, five months then elapsed. This contrasts with the period of some three weeks in the Eviston case. I accept fully what Mr. Keane says, that after this period the news coming “out of the blue” was indeed a very great shock. I do not attach much importance as to whether or not Mr. and Mrs. Keane were obliged to make submissions to the DPP. I am satisfied that the news of the review of the case and the subsequent prosecution exposed Mr. and Mrs. Keane to a level of stress and anxiety significantly beyond that which they bore as the unpleasant but necessary by-product of their being subject to a criminal investigation. In the circumstances of this case, this additional layer of distress and anxiety surpassed that which citizens, presumed innocent and labouring under the yoke of impending criminal prosecution, ought reasonably to endure. In my opinion, the respondent’s actions in reviewing and reversing the decision to prosecute and the circumstances surrounding these actions, taken all together, amount to a breach of the applicants’ constitutional right to fair procedures. In the circumstances, I am disposed to grant the relief sought. I therefore propose to grant the applicants an injunction restraining the respondent from proceeding any further with the prosecution in this matter. |