Neutral Citation No:  NIQB 44
Ex tempore Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Delivered: 8 May 2018
QUEEN'S BENCH DIVISION
DEENY LJ (delivering the judgment of the court)
"The court will refuse permission to claim judicial review unless satisfied there is an arguable ground for judicial review on which there is a realistic prospect of success."
" Where the function of a public body concerns decisions about commencing or permitting legal proceedings, grounds for judicial review are applicable in a restricted way. There is now a well trammelled line of authority to this effect in the context of PPS decisions to prosecute or not to prosecute, the most recent authority in Northern Ireland being Re Christopher Mooney's Application  NICA 48 which reviewed all of the salient case law."
And as it happens Mooney was not included in the papers for this hearing. His Lordship went on at :
" Hence for the purposes of the instant case, the relevant principles can be stated as follows:
(1) Absent dishonesty or mala fides or in highly exceptional circumstance, the decision of the PPS to consent to prosecution is not amenable to judicial review: see R v DPP ex p Kebilene  2 AC 326 at 369H-371G: and Corner House Research and Others  UKHL 60.
(2) A decision not to prosecute is reviewable but will be interfered with sparingly, namely for unlawful policy, failure to act in accordance with an established policy or perversity: see R v DPP ex p C 1 Cr. App. R. 136.
(3) The threshold for the review of decisions not to prosecute may be somewhat lower than that set for decisions to prosecute because judicial review is the only means by which the citizen can seek redress against the decision not to prosecute: see McCabe  NIQB 58 at [19-21] and see Ex parte Manning  QB 330 at para..
(4) Essentially there are three reasons for these principles. First, because the power in question is extended to the officer identified and to no one else. Secondly, the polycentric character of official decision-making and public interest considerations are not susceptible to judicial review because it is within neither the constitutional function nor practical competence of the courts to assess their merits. Thirdly, the powers are conferred in very broad and unprescriptive terms (see Mooney's case at paragraph )."
And in that case their Lordships went on to decline to grant leave. We note also the decision in Mohan's Application  NIQB 106 of Mr Justice Morgan, as he then was, to like effect. That was a motoring case and again he refused leave.
"We accord great weight to the judgment of experienced prosecutors on whether a jury is likely to convict and Mr Western's review note does not at all read as if composed to reach a predetermined conclusion. The note suggests that the author is seeking to review the case fairly and even-handedly and the final conclusion against prosecution comes as something of a surprise. In the end we are, however, satisfied that there are five points which Mr N as defendant would have to overcome if he were to defeat the prima facie case which in Mr Western's judgment lay against him and these were points which Mr Western did not address and resolve."
And the court goes on to list those five points. So there was clear and manifest error in the court's view on the part of the decision-maker. On that basis they went on to quash the decision. I observe that their decision, as they make clear, was not to order a prosecution; all they were prepared to do was to require the DPP to reconsider it. As the court said elsewhere in its judgment this was a power which the court "would exercise sparingly," albeit as Mr Heraghty said, the bar should not be set too high.