The Supreme Court dismissed Sabrina Dunphy’s appeal against the refusal to order discovery in her judicial review challenge to the Director of Public Prosecutions’ decision to prosecute her. The court affirmed the High Court order. It did not decide the criminal charges against Dunphy or order disclosure of the prosecution decision’s underlying documents.
Dunphy, then 15, was facing charges alleging unlawful possession of a controlled drug and possession for the purpose of supply. The alleged incident took place in Portmarnock on 22 October 2001. Another girl, also 15, had been diverted from the formal criminal process under the Juvenile Diversion Programme. A 19-year-old man accepted responsibility for the drugs.
Dunphy argued that the other girl’s involvement was greater and that prosecuting her while diverting the other girl was unfair and unequal. Her solicitors asked the DPP to divert her as well or disclose the documents, including internal memoranda, behind the different decisions. The DPP declined to reverse the prosecution decision and said it had been made in line with the published general guidelines.
Dunphy brought judicial review proceedings, alleging unlawful and unconstitutional treatment. She sought discovery to support those claims. The High Court refused her motion on 22 March 2004, finding that the difference in treatment did not meet the high threshold for showing that the DPP acted in bad faith or from an improper motive.
On appeal, the Supreme Court considered whether the claimed disparity supplied enough evidence of possible unlawfulness to justify discovery. It held that it did not. The court said the available information did not show that Dunphy’s involvement was less serious, and noted that she had previously received a caution under the diversion scheme. A prior caution did not automatically prevent another diversion, but could properly be considered when deciding whether to grant it again. The court said the two decisions could each be consistent with proper decision-making.
The judgment reaffirmed that discovery in judicial review must be necessary to resolve the case fairly and cannot be used as a fishing exercise. It also stated that the DPP’s reasons for prosecution decisions have special protection, and an applicant seeking discovery must provide at least suggestive evidence of impropriety. The court found that Dunphy had provided none. It dismissed the appeal and affirmed the High Court order refusing discovery.