The Supreme Court considered whether the Director of Public Prosecutions could reverse a decision not to prosecute Linda Eviston after that decision had been communicated to her. In a judgment delivered on 31 July 2002, Mr Justice Francis D Murphy rejected the legal arguments supporting an order that had restrained the prosecution. The judgment does not state the formal order made on the appeal, so its precise disposition is not clear from the source provided.
The case arose from a road traffic accident alleged to have occurred near Mallow, County Cork, on 28 June 1998. The accident resulted in the death of Tony Moynihan. Eviston admitted she was driving the car. She told gardaí that the car had suffered a puncture hours earlier and that bystanders changed the wheel. She and a consulting motor engineer attributed the accident to a wheel or tyre defect rather than driver negligence.
The DPP initially decided not to prosecute. After the victim’s father, Anthony Moynihan, asked the DPP to reconsider, the Director reviewed the file and directed a prosecution, despite having no additional information, according to the judgment. Eviston sought judicial review. On 26 January 2001, Mr Justice Kearns ordered the DPP to take no further steps in the prosecution.
The permitted grounds of challenge argued that the communicated decision was final, or that reversing it without warning breached fair procedures. Additional grounds argued that the DPP had acted under an improper policy and needed good and sufficient grounds to reverse the decision. Justice Murphy said the trial judge had relied on a finding that the reversal was arbitrary and perverse, although that was not a ground on which leave had been granted. He also rejected the proposition that changing a decision on the same evidence was necessarily arbitrary or perverse.
Justice Murphy accepted that Eviston could feel the prosecution decision was unjust, particularly because it followed the father’s request and his contact with the Minister for Justice. But he found no enforceable right on the arguments advanced. He said the DPP could change a decision to prosecute or not prosecute, even after making it public, and that fair procedures did not require the Director to justify the change in these circumstances. He also rejected arguments based on estoppel, legitimate expectations and a claimed constitutional “right to peace of mind.”
The judgment addressed the challenge to the restraint order and the DPP’s power to reverse the earlier decision. It does not establish the eventual outcome of the criminal prosecution.