High Court of Ireland Decisions

1. District Judge Oliver McGuinness presided over a sitting of the District Court at Easkey, County Sligo, on the 4th September, 1995. He had listed before him four summonses alleging criminal offences. Two of them named the Director of Public Prosecutions as the complainant and John Shannon was the defendant in both of them. One of those summonses alleged that John Shannon assaulted Gwen Shannon on the 8th October, 1994. The other alleged that John Shannon unlawfully assaulted Elizabeth Shannon on the 8th October, 1994 thereby occasioning her actual bodily harm. Gwen and Elizabeth Shannon are sisters and their brother is John Shannon.

2. The other two summonses named John Shannon as the complainant and Gwendoline Shannon and Elizabeth Shannon as defendants. These summonses alleged common assault against Gwendoline Shannon and Elizabeth Shannon on the 8th October, 1994.

3. The proceedings at the suit of the Director of Public Prosecutions against John Shannon were listed first. The Director of Public Prosecutions was represented by Inspector Jerry Henry of Castlebar Garda Station. Prior to the hearing, he had been informed by the Director of Public Prosecutions that the charges which had been preferred against John Shannon were to be withdrawn. When the Director of Public Prosecutions' cases against John Shannon were called, Inspector Henry informed the District Judge that, on the instructions of the Director, the charges against John Shannon were being withdrawn by the State. This brought about an objection from the then Solicitor representing Gwendoline and Elizabeth Shannon. He unsuccessfully sought to have those matters adjourned by the District Judge. No reasons were given to the District Court as to why the Director of Public Prosecutions was not proceeding with the cases and the Solicitor for the Shannon sisters protested at this. The District Judge pointed out to that Solicitor that he (the Judge) had jurisdiction to dismiss the proceedings and, indeed, the District Judge has indicated to this Court that he was satisfied that he had no alternative but to dismiss them.

4. The Solicitor representing John Shannon told the District Judge that his common informer proceedings were next on the list but they had been instituted for the purpose of putting all matters before the Court. In view of the fact that the State had indicated that it was not going to proceed with the prosecutions against John Shannon, he had no material interest in proceeding with his private prosecutions against the Shannon sisters. The District Judge then dismissed all four summonses.

5. On the 26th February, 1996, Elizabeth and Gwendoline Shannon applied to Laffoy J. for leave to institute judicial review proceedings against District Judge McGuinness and the Director of Public Prosecutions arising from the dismissal of the Director of Public Prosecutions' proceedings against John Shannon. Leave was sought to apply for four Orders. They were:

6. Laffoy J. granted leave to apply for just one of the four reliefs sought. It is that set out at (c) above. She gave leave to apply for that declaration on two grounds. They were set forth at paragraph (e)(i) and (ii) of the statement grounding the application and read as follows:-

7. In applying to Laffoy J., no attempt was made by the Shannon sisters to make John Shannon either a Respondent or Notice Party to their application. He clearly was a person who might be directly affected by the outcome of such proceedings. He became aware of them and on the 2nd December, 1996, I made an Order joining him as a Notice Party to the Shannon sisters' judicial review proceedings.

8. On the 6th December, 1996, John Shannon obtained leave from me to seek judicial review of the Orders made by District Judge McGuinness in his private prosecutions against the Shannon sisters. He seeks an Order of Certiorari in respect of the two Orders made by District Judge McGuinness which dismissed his private prosecutions against the Shannon sisters. Consistent with the attitude which he adopted in the District Court, he has no desire to prosecute his claim in these proceedings unless his sisters succeed in their judicial review application.

9. I therefore proceed to consider the Shannon sisters' application.

10. The first point which is taken against Gwendoline and Elizabeth Shannon is that they have no entitlement to prosecute these proceedings at all. It is contended that they do not have the necessary locus standi to contest the decision arrived at by the District Judge. The basis for this submission is quite straight-forward. It is argued that the Shannon sisters are seeking Orders from this Court concerning proceedings in the District Court to which they were not party. The parties in the District Court proceedings were the Director of Public Prosecutions and John Shannon. The role of the Shannon sisters was that of witnesses called on behalf of the Director of Public Prosecutions. True it is that they were the allegedly injured parties and the persons who had made the complaints which brought about the prosecution at the suit of the Director. But does that entitle them to seek to impugn the Order made in the District Court?

11. Mr. Grogan, on behalf of the sisters, was unable to cite any authority which was precisely supportive of his entitlement to move this Court for the reliefs sought. Rather, he relied upon statements as to the general law on locus standi by reference to Cahill -v- Sutton , [1980] I.R. 269 and State (Lynch) -v- Cooney , [1982] I.R. 337.

12. Before considering these cases and their relevance to these proceedings, it should be pointed out that the two Orders which the sisters seek to impugn were made in respect of criminal prosecutions commenced by the Director of Public Prosecutions on foot of his statutory obligations imposed by the Prosecution of Offences Act, 1974. These were public prosecutions commenced at public expense and, if they were prosecuted to a successful conclusion, could have given rise to a penalty being imposed by the District Judge. If that penalty took the form of a monetary fine, the amount of the fine would be payable to the State. The only function which the Shannon sisters had in relation to these two prosecutions was to attend and give evidence when and if required before the District Judge. They were not party or privy to the proceedings in any other way. Given this situation, can it be said that their interest in the outcome of the proceedings was such as to entitle them to apply in this Court for judicial review of the decision given in the District Court?

13. The passage from Cahill -v- Sutton , which was relied on by Mr. Grogan, was that contained at page 286 where Henchy J. said:-

14. Whilst that decision was of course dealing with the entitlement to challenge the constitutional validity of an Act, it is submitted that it provides a test appropriate for consideration in this case. In any event, it is the high water mark of the submission for locus standi made by Mr. Grogan. If, therefore, one postulates this as the appropriate test to apply, one is immediately faced with having to answer a question as to what interests of the Shannon sisters have been "adversely affected or stand in real or imminent danger of being adversely affected by the operation of" the District Court Orders. The answer to that question must be 'None'.

15. They were not the prosecutors in the District Court proceedings. Their only function was as witnesses to give evidence when and if called upon to do so. No penalty imposed by the District Judge would have impacted upon them directly. No legal right, entitlement or interest of theirs was affected. Had they wished, they could have adopted the common informer procedure and prosecuted John Shannon privately in the District Court. They did not do so, relying instead on the State to mount a criminal prosecution. If such a prosecution is brought to an end in a manner which displeases the Applicants, they cannot complain of any legal right of theirs as having been adversely affected.

16. Mr. Grogan also relied upon the dictum of Walsh J. in State (Lynch) -v- Cooney , [1982] I.R. 337, where he said:-

17. This statement does no more than state the general approach which the Court should have when an issue of locus standi is raised before it. In the present case, it appears to me that the facts are very much against the Shannon sisters insofar as locus standi is concerned. As I have already pointed out, they were not parties to the proceedings in the District Court and, in my view, none of their legal rights were affected by the decision of the District Judge to dismiss the prosecution brought by the Director of Public Prosecutions and in respect of which the Director did not wish to proceed.

18. Apart from special statutory provisions, it has never been a feature of our jurisprudence that a victim has been given a hearing in the criminal process. No more than the Solicitor then appearing for the Shannon sisters had no entitlement to address the District Judge on the occasion in question do they, in my view, have any right to seek judicial review of the District Judge's Order.

19. Accordingly, I hold that the Shannon sisters are debarred from moving this application by reason of a lack of locus standi .

20. Lest, however, I am incorrect in the view which I have formed on this aspect of the matter, I will now proceed to consider the application on the merits.

21. The Orders made by the District Judge in the proceedings commenced by the Director of Public Prosecutions are in the following form:-

22. The Order is in precisely the same form in the case involving the alleged assault on Elizabeth Shannon save that there the offence is one of occasioning her actual bodily harm.

23. Mr. Grogan makes two points in relation to these Orders.

24. First, he says that insofar as the Orders recite that complaints were heard against John Shannon, they misstate the position. He says that the use of the expression "a complaint was heard" suggests that a full hearing took place when it is common case that that was not so.

25. Secondly, he says that having regard to what took place before the District Judge, he had no entitlement to make Orders dismissing the complaints. I will consider each of these submissions in turn.

26. As to the first, no authority has been cited supportive of the case which is made by Mr. Grogan. It appears to me that on the 4th September, 1995 all of the relevant parties were assembled before the District Judge and he was addressed by the representative of the Director of Public Prosecutions concerning the two summonses in question. What took place was undoubtedly a hearing and it was a hearing relating to the complaints of the Director of Public Prosecutions against John Shannon. Whilst evidence was not called, it was, in my view, nonetheless a hearing and one concerning the complaints which had been made by the Director of Public Prosecutions. It does not appear to me that when the Orders complained of use the expression "a complaint was heard" that that necessarily carries with it the implication suggested by Mr. Grogan to the effect that there was a full hearing with evidence being tendered. I am of the view that the Orders do not misstate the position insofar as they recite that a complaint was heard. Even if they did, it does not appear to me that that of itself would entitle the Applicants to an Order quashing the Orders of the District Court still less the declaratory relief which is now sought.

27. As I have already pointed out, the grounds upon which the Applicants were given liberty to make this application were

28. I am of the view that the first point made by Mr. Grogan is not accommodated in either of these grounds and, in any event, I take the view that the Orders do not misstate what went on before the District Judge.

29. The second argument concerning the ability of the District Judge to make the Orders complained of runs as follows. To dismiss the proceedings against John Shannon, a formal adjudication on the merits would have been required. The District Judge was not vested with any jurisdiction to dismiss the case in the absence of a full hearing.

30. In support of this contention, Mr. Grogan relied on the provisions of Rule 66 of the Rules of the District Court. That rule reads as follows:-

31. It does not appear to me that this Rule materially assists the Applicants in their submission. The first sentence of this Rule makes it clear that in any case involving a summary offence where the Judge does not convict the defendant, he may dismiss the complaint either on the merits or without prejudice to its being again made. The present case was one involving offences punishable on summary conviction and the District Judge did not convict the Defendant. He was, therefore, entitled to dismiss the complaint either on the merits or without prejudice. This is clear from the reading of the first sentence of Rule 66. As to the second sentence, it does not appear to me that it has any relevance at all. There is here no question of the appropriate provisions of the rules not having been complied with nor is there any suggestion that the District Judge was of opinion that the complaint before him disclosed no offence at law nor can it be said that neither the Complainant nor the Defendant appeared. In such circumstances, the District Judge is given a jurisdiction to strike out the complaint in a way that does not debar the Complainant from bringing fresh proceedings if he thinks fit so to do. However, none of the conditions precedent necessary for the exercise of this discretion as identified in the second sentence of Rule 66 were present in the instant case. Accordingly, it does not appear to me that this rule is of any assistance to the Applicants.

32. Apart from the foregoing, the Notice Party's answer to the Applicants' proposition is as follows. He contends that, under Rule 64(3) of the District Court Rules, in circumstances where an accused is present at the required time and place and the prosecutor is not present, then

33. If the rules of the District Court permit of a complaint being dismissed on the merits in circumstances where the prosecutor is not present and where quite clearly no full hearing takes place, then, he submits, a fortiori the District Judge must be entitled to make such an Order in circumstances where the prosecutor is present and indicates that he does not wish to proceed further with the matter. This appears to me to be correct.

34. Mr. Grogan contends that the Order which ought to have been made was one which would either strike out the proceedings or dismiss them without prejudice. It is clear from the decision of Barr J. (affirmed by the Supreme Court) in Carpenter -v- District Justice Kirby & Another , [1990] I.L.R.M. 764, that an Order striking out a complaint would entitle the Director of Public Prosecutions to proceed with a new charge in relation to the same offence. In this case, such an Order would not reflect the reality of the position. The Director of Public Prosecutions indicated that he did not wish to continue the prosecution against John Shannon. Therefore, an Order dismissing the proceedings accurately reflected the attitude of the Director of Public Prosecutions as communicated to the District Judge. An Order striking out the proceedings or dismissing without prejudice would not accurately reflect the attitude adopted by the Director of Public Prosecutions and communicated to the District Judge.

35. In these circumstances, I have come to the conclusion that the Order made by the District Judge was not merely lawful but was an accurate reflection of the attitude of the Director of Public Prosecutions who wished to have the charges withdrawn without any qualification.

36. I am satisfied that this complaint on the part of the Applicants is without foundation and, consequently, this application fails.

37. Even if I am wrong in the views which I have expressed to date, I am satisfied that, in any event, this would not be an appropriate case in which to grant the declaratory relief sought for the reasons which follow.

38. Declaratory relief, even when sought in judicial review proceedings, is discretionary. An applicant must show that it is just and convenient that the declaratory order be made. In my view, it would be neither just nor convenient that relief of the type sought here be granted. I have come to that conclusion for a number of reasons.

39. First, the Director of Public Prosecutions has decided that the prosecutions against John Shannon should not proceed further. The prosecutions in the District Court were brought in the name of the Director of Public Prosecutions and he is entitled to withdraw the prosecutions if he sees fit. He did so in the present case and the grant of the declaratory relief which is sought would merely introduce uncertainty in that a final Order of the District Court would be subject to a rider added by this Court to the effect that it was not final at all. But who would benefit by the addition of such a rider? Certainly, John Shannon would not. But neither would the Shannon sisters. Since they are not privy to the proceedings in the District Court, they could not revive them in any way. The most that such a declaration would do would be to provide them with a spring-board of opportunity to attempt to persuade the Director of Public Prosecutions to reverse himself and revive the prosecution against John Shannon. Indeed, that much is admitted by Mr. Grogan.

40. Secondly, I cannot lose sight of the fact that when this application was first mooted before Laffoy J., the declaratory relief in respect of which leave was given was but one of a series of Orders which were sought. Specific relief was sought as against the Director of Public Prosecutions by way of certiorari seeking to quash his decision not to proceed with the prosecutions. Leave to apply for that Order was not granted. However, the effect of the declaratory relief which is now sought would be to subvert the decision made by the Director of Public Prosecutions to bring the District Court proceedings to an end.

41. The basis upon which this Court can interfere with decisions of the Director of Public Prosecutions are fully dealt with in decisions of the Supreme Court in The State (McCormack) -v- Curran [1987] I.L.R.M. 225 and H. -v- Director of Public Prosecutions [1994] 2 I.R. 589 and my own decision in Landers & Others -v- Garda Siochana Complaints Board (7th March, 1997). This Court can only intervene by way of judicial review in respect of decisions of the Director of Public Prosecutions where it is demonstrated that the Director, in making his decision, did so mala fide or was influenced by an improper motive or was influenced by an improper policy or had abdicated his functions. There is no evidence whatsoever before the Court of the Director having been guilty of any of these faults. I am of opinion that if I were to grant the Declaratory Order which is sought here, I would, by a side wind, be judicially reviewing the decision of the Director of Public Prosecutions. Indeed, the Applicants make no bones about the fact that if granted this declaration, they wish to try and persuade the Director to take a view different to that which he already formed in the matter. It does not appear to me that it would be just or convenient that the Court should, by that procedure, permit of an indirect judicial review of the Director's decision already made in the case. I refuse to make such an Order.

42. In conclusion, it appears to me that an observation of O'Flaherty J. made in H. -v- Director of Public Prosecutions at page 602 has a relevance to the facts of this case. He said:-

43. In the present case, if I were to grant declaratory relief of the type sought, I would be opening the door to the very type of mischief identified by O'Flaherty J. in the passage just cited.

44. Having regard to the foregoing, the application of the Shannon sisters will be dismissed. As John Shannon has made it clear that he has no interest in pursuing his judicial review proceedings in circumstances where his sisters have been unsuccessful in theirs, a similar Order will be made in his case.