DPP reversed decision in death-crash case

A woman initially told she would not be prosecuted in relation to the death of a young man in a road traffic accident was later told she would be charged. The High Court was told the Minister for Justice, Equality and Law Reform, Mr O'Donoghue, made no representations to the Director of Public Prosecutions (DPP) on the case.

In an affidavit, Mr Domhnall Murray of the DPP's office, said it had received no oral or written representation by or on behalf of the Minister in connection with the case of Ms Linda Eviston, of Gortreagh, Fossa, Killarney, Co Kerry.

The affidavit was furnished to the court after Mr Justice Kearns's suggestion the Minister be informed his name had been mentioned in judicial review proceedings. These were taken by Ms Eviston challenging a decision to prosecute her for dangerous driving causing the death of Mr Anthony Moynihan jnr, of Cullen, Mallow, Co Cork. Mr Moynihan died when his car was in collision with a car driven by Ms Eviston on June 28th, 1998.

The Minister's name was contained in a letter written to the DPP by Mr Moynihan's father, Mr Anthony Moynihan, senior, on December 16th, 1998, in which he said his family was devastated by the decision not to bring charges against Ms Eviston, and added: "I have personally contacted Minister John O'Donoghue in relation to this matter in the hope that he can use his good office to assist us in this most distressing matter."

The DPP has said the letter prompted a review of the case by his office which led to the decision to prosecute.

Ms Eviston has said her solicitor told her in early December 1998 that gardai at Millstreet, Co Cork, said the DPP had decided not to prosecute her. However, on December 23rd 1998, she was told by gardai that, following representations, the DPP had reversed this decision and they i had been instructed to issue her with summonses for dangerous driving and dangerous driving causing death.

Yesterday, Mr Justice Kearns allowed Mr Patrick Horgan SC, for Ms Eviston, leave to amend his grounds of challenge to that decision. This would include the argument that the DPP had acted on foot of an improper policy in purporting to claim to himself an unfettered right to reverse his decision not to prosecute Ms Eviston when she had been told she would not be prosecuted.

Mr Horgan was also permitted to argue that, in the absence of good and sufficient reasons for reversing his decision, it was not open to the DPP to do so.

In closing submissions, Mr Horgan said the affidavit from Mr Murray did not say what had happened in the Eviston case but only outlined the usual practice in dealing with such matters. The DPP had had an opportunity to clarify the uncertainties in the case but had not done so. The DPP was not precluded from giving reasons for the reversal of the decision on prosecution but had chosen not to, apart from Mr Moynihan's letter.

Counsel said for the integrity of the criminal justice system and from the viewpoint of citizens, there could be no unfettered right by the DPP to blow hot or cold. The case centred on the contention this was an improper policy.

Mr Diarmaid McGuinness SC, for the DPP, said the DPP could not be required to justify the reasons to prosecute. It could not be argued the DPP could never lawfully change his mind about a prosecution. The DPP was entitled to consider if he had made the right decision.

There was no policy involved, let alone an improper policy, counsel argued. The DPP could, and did, undertake reviews of decisions he had made. The point was whether the DPP was entitled to review this or any other decision.

Mr Justice Kearns asked how satisfactory could it be, "on any basis of public policy", for a citizen to be told he or she would not be prosecuted for a serious offence and then to have that decision reversed on the basis of a letter from the family of the deceased and in the absence of any new material or new witnesses. If every decision of the DPP was a provisional one, why was the citizen not told that?

There would be "frightening implications" if people were to be encouraged to make representations to the DPP with a view to changing decisions already taken, the judge added. He reserved judgment and said he hoped to deliver his decision within the next few weeks.