The High Court has refused a Romanian woman’s application for an order requiring the Director of Public Prosecutions (DPP) to consider her request to withdraw a prosecution over her use and possession of a false passport.
The applicant arrived in Ireland in February 2005 with a false Lithuanian passport and sought asylum when challenged at Dublin Airport. She also had a valid Romanian passport and identity card. She was arrested and charged under sections 26 and 29(2) of the Criminal Justice (Theft and Fraud Offences) Act 2001. After five days in detention, she was conditionally released.
Her asylum application was later deemed withdrawn after she did not attend an interview. She was subsequently served with a deportation order, while the prosecution continued in the District Court.
The applicant’s lawyers relied on Article 31(1) of the 1951 Refugee Convention, which concerns penalties for refugees who enter or remain without authorisation in specified circumstances. They argued that she had claimed asylum in good faith and that the DPP had a duty, or a legitimate expectation-based obligation, to consider whether the prosecution conflicted with Ireland’s international obligations.
The applicant sought judicial review after letters to the DPP dated 15 November 2005 and 9 January 2006 received no reply. The court heard that the prosecuting Garda member had no power to withdraw the charges, and the District Court set a hearing date for 10 February 2006. Leave for judicial review was granted in March 2006. The only ground pursued was a request for an order of mandamus requiring the DPP to consider withdrawal.
The High Court said the Refugee Convention was not part of Irish domestic law and considered the DPP’s constitutional and statutory prosecutorial functions. It noted that review of the DPP’s decisions is limited, including where bad faith or an improper motive or policy is shown.
The judge found that the absence of a reply did not establish that the DPP had failed to consider the request. The prosecution’s continuation did not prove otherwise, and the DPP had previously considered the same issue in two cases with similar circumstances. The court said it was not the court’s role to require a response to every item of correspondence.
Finding no principled distinction from those earlier cases and no evidence of bad faith or improper motive or policy, the High Court refused the relief sought. It did not order the DPP to consider the request, nor did it determine the criminal charges.