The High Court refused two applications to prohibit prosecutions for alleged offences under the Water Services Act 2007, ruling that the Director of Public Prosecutions retained power to bring summary proceedings and that a separate challenge to one charge was premature.
Mr Justice White delivered the judgment on 10 May 2017 after hearing the applications on 1 and 2 February. Stephen Bennett faced five summonses alleging offences under section 12 of the Act. Ferdia O’Brien faced one summons alleging obstruction of a prescribed person’s exercise of powers under the Act.
Both applicants argued that the DPP could not prosecute because section 9 of the 2007 Act allowed summary proceedings to be brought by a water services authority. They said the provision, particularly after the repeal of section 9(2) in 2013, excluded the DPP. The DPP submitted that the authority could prosecute alongside the DPP, whose general statutory power remained in place.
The judge found no ambiguity in section 9 and said the Act did not make a water services authority the only person who could prosecute. He adopted the DPP’s submissions on the legal background, including the established principle that the DPP may prosecute where another person authorised by law has not initiated proceedings. The court held that Attorney General v Healy had been correctly decided and that the DPP’s authority had not been excluded.
O’Brien separately argued that the charge was legally uncertain because “prescribed person” was not defined in the Act, leaving unclear who could be obstructed in the exercise of statutory powers. The judge accepted that this was a substantive point of law with some merit. However, he found that O’Brien had not shown a real risk of an unavoidable unfair trial warranting prohibition. No application had been made to the District Court to strike out the charge on that basis, and the validity of the charge was for the trial court to determine, including whether the summons could be amended.
The judge also distinguished O’Brien’s reliance on K.M. v DPP, noting that the earlier case concerned a proposed retrial after evidence had been given, while no trial hearing had taken place in this matter beyond preliminary steps. He described the application as premature. The High Court refused prohibition in both applications.