The High Court has restrained the Director of Public Prosecutions from proceeding with a prosecution of a married couple, finding that the circumstances in which an earlier decision not to prosecute was reversed breached their constitutional right to fair procedures.
In a judgment delivered on 10 June 2008, Mr Justice Hanna said the DPP was entitled to revisit a decision not to prosecute and did not need new evidence or to give reasons for changing it. But he ruled that the combined circumstances in this case—including the unqualified communication of the initial decision and the later reversal—made the applicants’ additional distress and anxiety exceed what they ought reasonably to endure.
The couple, medical practitioners resident in Limerick, owned a rental house in Gort, Co Galway. Two men were found dead there on 1 December 2005. The applicants were charged under section 13 of the Non-Fatal Offences Against the Person Act 1997 with allegedly engaging in conduct by failing to maintain a boiler or provide adequate ventilation, creating a substantial risk of death or serious harm. The judgment did not determine the merits of those criminal allegations.
After cooperating with the Garda investigation and making statements, the applicants were told on 10 April 2006 that the DPP had decided not to prosecute. The judgment records that no warning was given that the decision might be reviewed. About five months later, they were told the case was under review; in early December 2006, they were informed that the DPP would prosecute, despite no new evidence having emerged. Charges were laid in Gort District Court on 28 May 2007.
The applicants argued that the reversal was unfair and that delay had impaired their defence, including through the absence of fingerprint evidence from a boiler switch and their failure to commission expert evidence after being told there would be no prosecution. The DPP disputed that they had suffered relevant prejudice and argued that the prosecution should proceed.
Mr Justice Hanna rejected the claimed evidential prejudice. He said the applicants had known early on that they might face prosecution and had time before the April 2006 decision to seek expert advice. He also considered fingerprint evidence on the boiler switch immaterial to the charge. He did not regard stress and anxiety alone as grounds to stop a prosecution.
However, the judge accepted that the applicants had been greatly relieved by the unqualified decision, which was communicated by the investigating detective who had acted as the State’s point of contact with them. He found that the later review and prosecution caused a significantly greater level of distress than they ought reasonably to endure. He therefore proposed to grant an injunction restraining any further prosecution. The judgment does not assess the applicants’ guilt or innocence.