The High Court has refused an application for discovery of documents relating to decisions by the Director of Public Prosecutions (DPP) to prosecute a woman first summarily and later on indictment.
The application was made in judicial review proceedings seeking to restrain the prosecution as unfair and in breach of fair trial rights, fair procedures and legitimate expectations. The court’s ruling concerns discovery only; the substantive judicial review challenge remains unresolved.
The woman was summoned in November 2019 to appear at Portlaoise District Court on charges concerning possession and supply of drugs under the Misuse of Drugs Act 1977. After an adjournment to 21 March 2021, the prosecution sought a further adjournment. The District Judge refused and struck out the proceedings, saying any recharging should happen within four weeks. Both parties agreed the judge had no jurisdiction to set a timeframe or method for a further prosecution.
The woman was recharged on indictment before the Circuit Court in November 2021, about eight months later. She argued this exposed her to a longer potential sentence and removed the possibility of serving a concurrent sentence. The DPP disputed that she had suffered direct prejudice or that the circumstances suggested impropriety.
The woman’s solicitor sought documents about the decisions to begin both prosecutions, arguing they would assist the court’s review. The DPP relied on its special legal position and the established principle that it generally does not have to give reasons for a decision to prosecute. The judge said the possibility that privilege might be claimed over documents was not decisive.
Ms Justice Marguerite Bolger said discovery concerning prosecution decisions could be ordered only in exceptional circumstances, requiring at least evidence suggestive of impropriety. She found that the woman did not allege impropriety, bad faith, an improper policy or an improper purpose. Nor did the fact that the prosecution moved from summary proceedings to indictment meet the threshold. The judge said the affidavit evidence did not exclude the reasonable possibility that the DPP had made proper and valid decisions.
The judge refused discovery and said it would not be lawful or appropriate to require the DPP to provide the sources of information behind the decisions. Her conclusion was based on the discovery application itself, not on the DPP’s position that privilege might be asserted.
On costs, the judge gave an indicative view that the DPP, having succeeded on the application, was entitled to its costs, with execution stayed until the substantive proceedings conclude. She listed the matter for 14 December 2023 to make final orders, including on costs, and to hear any further submissions.