The High Court ordered the Director of Public Prosecutions to disclose the guidelines and protocols in place on 16 November 2021 for deciding when or how to review a decision not to prosecute. It refused the applicant’s broader requests for discovery in his judicial review case against the decision to prosecute him for historic sex offences.
The ruling, delivered by Mr Justice Barr on 31 July 2023, concerned an interlocutory application for discovery, not the substance of the judicial review. The applicant seeks to overturn the DPP’s 3 October 2022 decision to prosecute him in relation to complaints by two brothers alleging sexual assaults on various dates around 1991.
The DPP had previously directed that there be no prosecution in relation to each brother’s complaint: the decisions were dated 16 October 2020 and 20 October 2021. After one complainant requested reasons under the Criminal Justice (Victims of Crime) Act 2017, the DPP reviewed the files and directed a prosecution in October 2022. The judgment records that no new evidence came to light and that the applicant was not told when the review began; those matters were not in dispute on the discovery application.
The applicant sought documents in three broad categories: the applicable decision-making guidance, records concerning the decisions not to prosecute and the later decision to prosecute, and documents about the review. The court found that the 2017 Act’s new requirements to provide reasons to victims and review a decision when requested made it difficult to accept that the review protocols had remained unchanged since 1998. It ordered discovery of the guidelines and protocols extant on 16 November 2021, when the request for reasons was lodged. The discovery affidavit must be sworn within six weeks by the DPP or an officer she nominates.
The court refused discovery of the documents sought in category two. That request was too broad and covered internal and Garda memoranda which the court considered protected by public interest privilege. It also held that the applicant was not entitled to documents about the reasons for the prosecution decision, and that documents concerning the earlier decisions not to prosecute were not relevant to the issues in this judicial review. The third category largely repeated the first two and was also refused.
Justice Barr said the applicant had the information needed to pursue the judicial review and respond to the respondents’ case. The court did not decide whether the prosecution decision was lawful or whether the applicant was entitled to relief in the substantive proceedings.