The High Court refused an applicant leave to seek judicial review of the Director of Public Prosecutions’ refusal to withdraw a prosecution over an allegedly false instrument. Ms Justice Dunne ruled on 2 February 2006 that he had not shown the substantial grounds required for leave.
The applicant, a Moldovan national, arrived at Dublin Airport in March 2005 carrying false travel and identity papers, according to his affidavit. He said he had travelled to Italy before buying a false Lithuanian passport in Venice, then flew to Dublin. He applied for asylum after his arrest, as he was about to be removed to Venice.
Earlier charges relating to the destruction of papers and failure to establish his identity were withdrawn after he obtained his genuine passport from a friend in Italy. He was later charged under section 26 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The judgment describes the charge as involving knowledge or belief that an instrument was false, with intent to induce another person to accept it as genuine.
His solicitor asked the DPP to withdraw the charge, arguing that Article 31 of the 1951 Refugee Convention applied. The DPP’s office rejected the request, citing the High Court’s earlier decision in *Sofineti*, which held that Article 31 had not been incorporated into Irish law and could not be invoked to prevent a prosecution of this kind.
At the judicial review hearing, the applicant narrowed his claim. He no longer pursued an injunction or an order prohibiting the prosecution, and instead sought an order requiring the DPP to consider his request to withdraw the charge. The second named respondent, Judge Coughlan, was removed from the proceedings because no relief was sought against him.
Justice Dunne found that granting the requested order would in effect delay the prosecution until the DPP decided whether to withdraw it. The applicant had not shown a serious risk of an unfair trial, which the judge considered necessary in light of that practical effect. She also concluded that the DPP’s letter showed he had considered Article 31’s relevance but had decided it could not prevent the prosecution. Following *Sofineti*, there was no enforceable right to compel a further consideration under Article 31 by mandamus.
The application for leave to apply for judicial review was refused. The judgment records that the DPP had not pursued the prosecution while the judicial review proceedings were pending; it does not determine the criminal charge.