The Supreme Court has allowed an appeal by Mary Kelly and Declan Buckley and quashed summonses issued against them in a private prosecution brought by Patrick Halpin. The Court held that the sworn information did not provide evidence of an essential element of the alleged offence and that the proceedings were an abuse of process.
The judgment, delivered by Mr Justice Clarke on 30 July 2015, arose from allegations about a meeting at Irish Bank Resolution Corporation (IBRC) on 17 February 2012. Halpin alleged that Kelly and Buckley knew a decision had been made to appoint receivers to two companies of which he was a director, but failed to disclose it during a meeting. He said the companies had been seeking to continue trading while arranging repayment of debts exceeding €25 million. Kelly and Buckley contested his account.
Halpin swore an information alleging an offence under section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001. A District Judge issued summonses requiring Kelly and Buckley to attend court. They sought judicial review to have the summonses quashed. The High Court dismissed their application, and they appealed.
The Supreme Court rejected the argument that legislative changes had abolished private prosecutions for indictable offences. It said the common informer system remained in place, although a private prosecution could not proceed to trial on indictment without the Director of Public Prosecutions taking it over, or be tried summarily without the Director’s consent.
The Court found a separate, fundamental defect in the summonses. The alleged offence required evidence of dishonest deception and inducement, with an intention to cause loss or make a gain. The sworn information did not show how Kelly or Buckley had induced Halpin or his accountant, Aidan Murphy, to act or refrain from acting, or how either official intended to cause them loss. Clarke said there was no evidence before the District Judge on that essential element. The Court said there was no evidence that Halpin had expanded on the written information during the summons application.
The Court also found that the proceedings were an abuse of process. Clarke said the evidence indicated that Halpin and his advisers had deliberately kept the DPP out of the matter and resisted an attempt by Kelly and Buckley to ask the District Judge to set aside the summonses before the return date. The Court concluded that the prosecution was not motivated by a genuine desire to invoke the limited role of a private prosecutor, but by a desire to secure the officials’ attendance in criminal court.
The appeal was allowed and the summonses were quashed. The Court did not abolish private prosecutions or determine what would happen if the DPP consented to summary trial in a future case.