Supreme Court rules in favour of DPP U-turn

THE SUPREME Court has ruled the DPP is entitled to prosecute a man now for assault causing harm to another man despite previously telling him he would not be prosecuted.

The DPP’s change of mind about prosecuting John Carlin, Fountain Street, Strabane, Co Tyrone, followed a review initiated after the family of the alleged victim expressed concerns to gardaí, passed on to the DPP, about the decision not to prosecute.

The Supreme Court yesterday stressed the DPP was entitled to review and reverse decisions not to prosecute and ruled Mr Carlin had failed to show the DPP had breached fair procedures causing him to suffer a level of stress and anxiety higher than the normal stress experienced by persons being prosecuted. An affidavit from Mr Carlin fell “well short” of describing the sort of exacerbated anxiety and stress which had led to the Supreme Court halting a prosecution in another case, the Eviston case, Mr Justice Nial Fennelly said.

Mr Carlin did not seem to go beyond alleging “a degree of annoyance and inconvenience”.

The decision to initiate a prosecution and the subsequent conduct of that were functions exclusively assigned to the DPP, he said. The DPP had to adhere to fair procedures but, unless there was evidence of bad faith by him, he was not required to explain his decisions. He was also entitled to review and reverse decisions not to prosecute even in the absence of new evidence and even after representations by a victim or their family.

Agreeing, Mrs Justice Susan Denham said the courts over the last few decades have stated “a clear policy” of non-intervention, except in particular circumstances, in the exercise of the discretion of the DPP.

An independent prosecutor is an important part of the fabric of a fair justice system, she said. If the DPP was seen to change his decision where there are no new factors but simply after representations by a victim or their family, this raised issues as to the integrity of the initial decision and may impinge on confidence in the system.

It was important society retained confidence in the DPP’s process of decision making, she said. It was entirely appropriate the DPP have a process under which he might review an earlier decision but that process must be fair and must be seen to be fair. In the circumstances of Mr Carlin’s case, there was no reason in law for the court to intervene.

On that basis, the judges, with whom Ms Justice Fidelma Macken agreed, dismissed Mr Carlin’s appeal against a High Court decision the DPP could prosecute him on a charge of assault causing harm to Paul McGeady in Letterkenny on June 30th, 2001.

Mr Carlin was charged at Letterkenny Garda station in July 2001 but District Court proceedings against him were later adjourned as he was serving a 3½-year sentence in Northern Ireland. In December 2001, gardaí sent a file to the DPP.

Mr Carlin was released from prison in February 2003 and was later informed the DPP had, in November 2003, directed he was not to be prosecuted for the assault charge.

Later, in November 2003, the DPP received a letter on behalf of Mr McGeady whose family also met with gardaí to express concern about the decision not to prosecute. A review of that decision was initiated and a fresh direction of April 2004 from the DPP stated Mr Carlin was to be prosecuted.

Mr Carlin was arrested in the North in May 2006 and, while he did not oppose his surrender to this jurisdiction, he objected to being prosecuted on the assault charge. He took judicial review proceedings which were rejected by the High Court in 2007.