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.