JUDGMENT of Mr. Justice Fennelly delivered the 16th day of March 2010.
1. The Director of Public Prosecutions began a prosecution of the appellant, though he had earlier told him that there would be no prosecution. The appellant complains that it is unfair and unjust to permit the Director to go back on his decision and asks the Court to halt the prosecution. He relies on the decision of this Court in Eviston v Director of Public Prosecutions [2003] 2 I.R. 260.
2. The appellant obtained leave to apply for judicial review by way of prohibition of the Respondent from taking any further steps in the prosecution. Murphy J rejected his claim on the substantive hearing. The appeal is taken from the latter decision.
3. The relevant chronology is as follows.
4. On 30th June 2001, it is alleged that the appellant committed the offence with which he is charged, namely assault causing harm to one Paul McGeady in Letterkenny contrary to section 3 of the Non-Fatal Offences Against the Person Act, 1997.
5. On 14th July 2001, the appellant was charged at Letterkenny Garda Station and released on “station bail” to appear at Letterkenny District Court on 4th October 2001.
6. On 4th October 2001, the appellant failed to attend at the District Court, because he was by then serving a sentence of three and a half years which had been imposed on him at Belfast Crown Court. The matter was adjourned.
7. On 1st November 2001, the sitting District Judge issued a bench warrant.
8. On 18th December 2001 the gardaí sent a file to the Director.
9. On 15th February 2003, the appellant was released from prison in Northern Ireland. He made inquiries through his solicitor as to what had happened to the charge before the District Court.
10. On 5th November 2003, the Director transmitted a direction to the gardaí that the appellant was not to be prosecuted, information which was conveyed to the appellant. The bench warrant was cancelled. It is common case that no suggestion was made that the Director had the right to reconsider the decision not to prosecute.
11. On 18th November 2003, the Director received a letter on behalf of the injured party. The family of the complaint met the responsible Garda Superintendent to express their concern about the Director’s decision not to prosecute. These concerns were passed on to the Director. The decision was reviewed in the office of the Director and a fresh direction was issued on 8th April 2004 that the appellant be prosecuted for assault.
12. The appellant was resident in Northern Ireland. By this time the European Arrest Warrant Act, 2003 had come into force. This and other changes to the law are offered as explanations of the delays leading up to the endorsement on 15th November 2005 by Peart J of a European Arrest Warrant seeking the surrender of the appellant. This Warrant having been duly transmitted to Northern Ireland, the appellant was arrested there on 18th May 2006. The appellant did not oppose the request for his surrender before the Northern Ireland Court and he was surrendered to this jurisdiction on 25th May 2006.
13. The appellant, through his solicitor, objected to his prosecution in the District Court. He relied especially on the Eviston decision and complained of the long delay which had elapsed between the original decision not to prosecute (November 2003) and the reversal of that decision. I will return to consider the effective periods of delay.
14. The appellant did not apply immediately for judicial review. He waited to see if the book of evidence contained any new evidence. After the matter had come back before the District Court in April 2007, the appellant sought leave to apply for judicial review. Leave was granted by order of Peart J on 9th July 2007. The appellant sought an order prohibiting his further prosecution on the central ground that the reversal by the Director of his decision not to prosecute was ultra vires, unlawful and unconstitutional and that he had not observed fair procedures, particularly by his failure to warn the appellant that he could review or reverse his decision. He also complained of delay such as to create a real risk that he would not have a fair trial. In his grounding affidavit, the appellant expressed his complaint about the reversal of the Director’s decision as follows:
“ I have found this process extremely stressful. I do not understand how it can be that at one moment I can be told that the prosecution will not proceed and that at the next moment and for no obvious reason that it would be going ahead. I had believed that I had put all of this behind me but now I find that I had to revisit the whole thing. There has been a long period of time during which I did not have to worry at all about the events surrounding the alleged offence but now I find I had to try and remember these events. I do not believe that if this matter proceeds that I will get a fair trial.”
15. Murphy J dismissed the application. He distinguished the Eviston case on the grounds that it concerned prosecution for a road traffic offence, are as this case is concerned with a serious assault. He considered that the essence of the case was whether any sense of injustice about a prosecution going ahead can be made into a legally enforceable right. He held that there was no right to have the Director inform a person of the change in his view, and also that there was no sufficient evidence of prejudice or stress.
16. The appellant challenges the correctness of the decision of the High Court essentially on the ground that the Director failed to observe fair procedures when making and later reversing his decision not to prosecute. Mr Richard Lyons, Senior Counsel, for the appellant said that the Director had made three decisions, firstly to prosecute, when the appellant had been charged, secondly, not to prosecute in November 2003 and, thirdly, to prosecute and to issue a European Arrest Warrant. He emphasised the associated delay of some thirty months between the second and the third decision, which he said was blameworthy. He also referred to the loss of some photographs of the injured party which had occurred over the period of the delay.
17. Mr Lyons addressed the quality of the evidence of stress and anxiety by referring to the decisions of this Court in P.M. v Director of Public Prosecutions [2006] 3 IR 172 and in O’H v Director of Public Prosecutions [2007] IESC 12 of 28th March 2007. He cited, in particular, a statement from the dissenting judgment of Kearns J (as he then was) in the former case to the effect that it would be “a retrograde step if in any case where heightened levels of stress and anxiety can reasonably be inferred as a matter of good common sense from the factual history, that there should in addition be imposed upon an applicant seeking relief the obligation to furnish psychiatric evidence in support of that contention.”
18. Mr Feichín MacDonagh, Senior Counsel, for the Director said that he appellant’s case was weak on prejudice: he had not engaged with the facts. It is clear from all the evidence that the appellant has no difficulty in recalling the facts of the incident the subject of the charge. As to reliance on Eviston, he argued that the evidence of stress or anxiety was very sparse. There was no evidence of stress of the two types necessary to invoke Eviston. He said that the Director’s procedures for review of his own decisions are, as a result of the judgment in Eviston part of “the law of the land,” of which the appellant had constructive notice. That judgment was delivered on 31st July 2002. The decision of the Director not to prosecute was conveyed to the appellant in November 2003.
19. Prior to considering this question of observance of fair procedures, it is appropriate to recall the nature and extent of the powers of the Director to decide, respectively, to institute a prosecution, to decide not to prosecute and to review and, where appropriate, reverse any earlier decision. The relevant case law has seen the development of clear criteria. Keane C.J., most notably, in his majority judgment in Eviston comprehensively examined and explained the key elements. For the purposes of the present appeal, it is sufficient to recall the essence of that judgment. Firstly, “both the decision to initiate a prosecution and the subsequent conduct of the prosecution are functions exclusively assigned… to the respondent under the Constitution and the relevant statutory provisions.”(page 290) Secondly, in the absence of mala fide, evidence that the Director had abdicated his functions or improper motivation, the Director “cannot be called upon to explain his decision or to give the reasons for it or the sources of the information upon which it is based.” (page 294). Thirdly, the Director is entitled to review and to reverse his own earlier decision not to prosecute even in the absence of new evidence and even following the making of representations by the complainant or his family.
20. On the other hand, the Director “… remains subject to the Constitution and the law in the exercise of his functions…” He is “not exempt in the performance of his statutory functions from the general constitutional requirements of fairness and fair procedures…” (page 295).
21. Keane C.J. referred specifically to the relationship between the decision to reverse a decision not to prosecute and the need to respect fair procedures in the following passage:
“It also seems to me……that where, as here, the respondent avails of his undoubted right not to give any reasons for a decision by him to reverse a previous decision not to prosecute, but concedes that there has been no change of circumstances, his decision is, as a matter of law, prima facie reviewable on the ground that there has been a breach of fair procedures. Whether such a breach has been established must, of course, depend entirely on the circumstances of the particular case.”
22. The basic facts in Eviston were as follows. The applicant was involved in a road traffic accident in which an innocent third party was killed. The Director decided that no prosecution should be initiated. That decision was notified to the applicant’s solicitor. The father of the deceased third party in the accident wrote asking the Director to reconsider the decision, which he did. There were no new facts. He declined to give reasons for his decision. The Chief Justice observed that the question whether fair procedures had been observed was a difficult now. He continued, at page…:
“As I have emphasised more than once in this judgment, stress and anxiety to which the presumably innocent citizen is subjected when he or she becomes the accused in a criminal process could not conceivably be, of itself, a sufficient justification for interfering with the undoubted prosecutorial discretion of the respondent. It is, however, beyond argument that the degree of such stress and anxiety to which the applicant was subjected was exacerbated by the decision of the respondent to activate the review procedure in circumstances where he had already informed the applicant that she would not be prosecuted and had not given her the slightest intimation that this was a decision which could be subjected to review in accordance with the procedures in his office. If those review procedures formed part of the law of the land, then, the applicant would be assumed, however artificially, to have been aware of that law. The review procedures of the respondent, however, are not part of the law: they constitute a legitimate, and indeed salutary, system of safeguards to ensure that errors of judgment in his department which are capable of correction are ultimately corrected. No reason has been advanced, presumably because none existed, as to why the applicant was not informed that the decision of the respondent not to institute a prosecution might in fact be reviewed at a later stage. In the result, she was subjected to a further and entirely unnecessary layer of anxiety and stress. Viewing the matter objectively, and leaving aside every element of sympathy for the applicant, I am forced to the conclusion that in circumstances where the respondent candidly acknowledges that there was no new evidence before him when the decision was reviewed, the applicant was not afforded the fair procedures to which, in all the circumstances, she was entitled. It follows that the requirements of the Constitution and the law will not be upheld if the appeal of the respondent in the present case were to succeed.”
23. In this case, as in Eviston, the real difficulty is in applying the principles of fair procedures to the fact of the case. As Keane C.J. emphasised, everything turns on the facts of the particular case. The passage quoted above proceeds on the combination of three elements. Firstly, the Director had no new evidence before him when he altered his decision. Secondly, he did not warn the applicant that his decision was liable to review. The stress suffered by the applicant was exacerbated by the communication of a decision to prosecute in the absence of such a warning.
24. On the other hand, the Chief Justice emphasised that, taken on its own, the fact that the criminal process exposes a person to stress cannot be a ground for halting a prosecution. The Director is entitled to change his decision even without new evidence. The Director is under no specific obligation to warn a person of the possibility of review, when communicating a decision not to prosecute. In fact, as was pointed out in the course of argument, communication of such a caveat would be likely to add to the stress, whereas, at least on his own affidavit, the appellant did not worry at all about the matter between the two relevant dates and thus would probably have suffered more from stress, if he had believed that the prosecution could be revived. Moreover, it is not suggested in Eviston (at least it was not a ground advanced) that the Director was obliged to warn the appellant that he was reviewing his decision so as to allow him an opportunity to make representations, which would be the classic observance of fair procedure. Such a procedure would be quite incompatible with the autonomy of the Director’s decision-making function. In addition, such a warning would be likely to give rise to some degree of flight risk.
25. I have come to the conclusion that the decisive component of the judgment Keane C.J. in Eviston was neither the absence of a caveat that the decision was subject to review, nor the fact that the review occurred without any new evidence, though each was a necessary ingredient, but the finding that “the degree of …stress and anxiety to which the applicant was subjected was exacerbated…” and that the applicant “was subjected to a further and entirely unnecessary layer of anxiety and stress.” This cannot, admittedly, be said of the concurring judgment of McGuinness J, which was (see page 320) to the effect that:
“On these particular facts it seems to me that once the respondent had unequivocally and without any caveat informed the applicant that no prosecution would issue against her in connection with this road traffic accident, it was a breach of her right to fair procedures for him to reverse his decision and to initiate a prosecution by the issuing of the summons on the 23rd December 1998.
26. McGuinness J did say that she “bore in mind the level of stress and anxiety which has been borne over a considerable period by the applicant.” I am conscious that the High Court judgment of Kearns J (as he then was) makes no reference at all to the suffering of stress or anxiety by the applicant. Nonetheless, it seems clear that it was the exposure of the applicant “to a further and entirely unnecessary layer of anxiety and stress” which tilted the balance decisively in her favour.
27. I ask myself whether the appellant, in the present case can point to anything similar. I bear in mind the statement of Kearns J quoted above that psychiatric evidence should not be necessary to prove stress or anxiety. The same learned judge in his judgment in P.M. v Director of Public Prosecutions, cited above, at page 186 cited an affidavit deposing, in detail, to the applicant’s suffering from seriously exacerbated levels of anxiety and worry. In my own judgment, speaking for the majority, in O’H v Director of Public Prosecutions, cited above, referred, at paragraph 78, to the sort of evidence that would be necessary in the following terms:
“I would have thought that, at the very least, the applicant would have sworn a short affidavit explaining or describing that anxiety or stress. Not only has he not done so, but his solicitor does not mention anything of the sort in his affidavit. I am far from saying that it is necessary to have psychiatric or psychological evidence of stress or anxiety. Whether anxiety or stress has been suffered is largely a matter of common sense. I merely say that some evidence is necessary. Here there is none. It is obvious that it is stressful for any individual to have to face criminal proceedings. Some distress is inevitable. There must be evidence of something more than normal, something extra caused by the alleged prosecutorial delay.
28. The only relevant evidence in the present case is to be found in the appellant’s grounding affidavit:
“I have found this process extremely stressful. I do not understand how it can be that at one moment I can be told that the prosecution will not proceed and that at the next moment and for no obvious reason that it would be going ahead. I had believed that I had put all of this behind me but now I find that I have to revisit the whole thing. There has been a long period of time during which I did not have to worry at all about the events surrounding the alleged offence but now I find I have to try and remember these events. I do not believe that if this matter proceeds that I will get a fair trial. I am also concerned at the fact that the photographs of the alleged injured party have gone missing. Without having seen them I cannot say for sure but I think they may have played a part in my defence to the charge as alleged.”
29. I am satisfied that this passage, which I have quoted in full in order to give context, falls well short of describing the sort of exacerbated anxiety and stress described by the Chief Justice in Eviston. The most that is said about the result of receiving the bad news that the prosecution was to proceed after all is: “I find that I have to revisit the whole thing,” which seems related to the statement: “I find I have to try and remember these events.” The appellant does not seem to go beyond alleging a degree of annoyance and inconvenience. It has to be recalled that, as is stated in Eviston, the mere fact of suffering anxiety or stress is insufficient in itself to justify halting a prosecution. It is an inescapable feature of being prosecuted. The appellant would have to have shown that the level of anxiety or stress suffered was raised beyond that normal level by reason of the failure of the Director to observe fair procedures. He has not done so.
30. Nor do I believe that delay avails the appellant. Delay was not an issue in Eviston. Certainly there was a lapse of time in the present case. The appellant complains of a period of 30 months from November 2003 (when he was informed of the decision not to prosecute) to May 2006 (when he was arrested on foot of the European Arrest Warrant). Firstly, it should not be forgotten that the original District Court proceedings were halted by the failure of the appellant to appear and his subsequent imprisonment in Northern Ireland until February 2003. Secondly, the first part of the period after November 2003 is explained by the intervention of representations on behalf of the injured party and the Director’s review. I accept that there was significant delay between the decision of April 2004 to revive the prosecution and the endorsement in the High Court of the European Arrest Warrant in November 2005. This has been explained in part. There was no significant delay thereafter up to the time of the arrest of the appellant in May 2006. Any period of delay is, in any event, relevant in the absence of evidence of prejudice (see P.M. v Director of Public Prosecutions, cited above). The only suggested prejudice relates to the loss of photographs. The complaint regarding missing photographs is merely that. No meaningful attempt is made to relate any photographs to the trial of the appellant.
31. I do not believe that the appellant has established any ground of appeal from the judgement of the High Court. I would dismiss the appeal and affirm the order of that court.
