Sabrina Dunphy (a minor) (applicant) v the Director of Public Prosecutions (respondent).
Practice and procedure - Discovery - Judicial review - Onus - Whether burden for obtaining discovery in judicial review discharged by applicant - Prosecution - Whether duty to give reasons for decision to prosecute.
The Supreme Court (Hardiman J; McCracken and Macken JJ). Judgment delivered November 2nd, 2005.
Discovery will only be granted in judicial review applications in limited circumstances. As the Director of Public Prosecutions, as a general rule, is not obliged to give reasons for his decision to prosecute or not to prosecute in a given case, an application for discovery in the context of a judicial review of the decision of the respondent to prosecute the applicant did not fall within one of the limited exceptions as there was a special evidential standard for the applicant as the granting of discovery would or might undermine the special protection available to the respondent in respect of his decision to prosecute.
The Supreme Court so held in dismissing the applicant's appeal from the decision of the High Court refusing her application for discovery of documents in the context of a judicial review of the decision of the respondent to prosecute her.
Michael O'Higgins SC and Sean Gillane BL for the applicant; Feichín McDonagh SC and Paul Anthony McDermott BL for the respondent.
Mr Justice Hardiman, delivering the judgment of the court, in an appeal from the High Court, whereby the applicant's motion for discovery was refused, said that the applicant was the defendant in criminal proceedings. She was alleged to have been in unlawful possession of a controlled drug. She was arrested, together with another girl called Emma Kavanagh, and was found to be carrying the drug. When interviewed by the Gardaí, she said the drugs were the property of a friend, Gareth Hickey. He had given the drugs on the previous day to Ms Kavanagh, who had kept them overnight. Ms Kavanagh, however, could not keep the drugs on the next night. On that night, the owner of the drugs had "business" with the drugs and prevailed upon the applicant to carry the drugs for him. Mr Hickey accepted responsibility for the drugs and said that he had paid Ms Kavanagh to mind the drugs.
At the time, the applicant and Ms Kavanagh were fifteen and Mr Hickey was 19. Mr Justice Hardiman said that the applicant's background was unfortunate and she had lived in care, in a hostel, for some time. On the hearing of the appeal it was submitted that the applicant's involvement in the matter was the least of the three.
The applicant was aggrieved at the fact that while she was being prosecuted in respect of her dealings with Gareth Hickey's drugs, Ms Kavanagh was not. Instead, she was diverted from the criminal process under the Juvenile Diversion Programme, in accordance with an appendix to the respondent's "general guidelines", published in October, 2001.
Accordingly, the applicant's solicitors had written to the respondent, contending that the applicant was a vulnerable person and that her involvement was much less than that of the other girl.
The solicitors then asked either that the applicant be dealt with under the Juvenile Diversion Programme or, in the alternative, that the respondent disclose "the precise basis and documentation in existence touching upon same (including internal memoranda) on which the decision was reached to prosecute our client and to deal otherwise with a person who was much more culpable than our client". To that, the respondent replied that "the decision to prosecute Sabrina Dunphy was made in line with the general guidelines published by the DPP. It is not proposed to reverse the decision such that your client be dealt with under the Juvenile Diversion Programme".
The High Court granted the applicant leave to seek reliefs by way of judicial review. This included: an order prohibiting the respondent from taking any further step in the criminal prosecution; a declaration that the respondent acted otherwise in accordance with law and/or in breach of the constitutional rights of the applicant in failing to give reasons for initiating the prosecution while applying the Juvenile Liaison/Diversion Scheme to a confederate and; an order of mandamus requiring the respondent to give reasons for the decision not to apply the provisions of the Juvenile Liaison/Diversion Scheme.
In July 2003, the respondent filed a notice of opposition stating that there was no reason to believe that his decision to prosecute the applicant was mala fide, perverse, inspired by improper motives or policy, or was the result of an abdication of his functions. He also pleaded that in the absence of evidence from which it could reasonably be inferred that the decision to prosecute her was of that nature, her complaints were not cognisable by any court and could not give rise to any relief. He also pleaded that in the absence of such evidence the applicant was not entitled to require reasons to be given as to why he did in fact initiate the prosecution.
In November, 2003, the applicant sought voluntary discovery in the form set out in the above letter. She said that she had been discriminated against unfairly by comparison with the treatment accorded to Ms Kavanagh who was factually more culpable. She further said that the respondent had discriminated between the two girls in a manner which was unconstitutional, unfair and arbitrary. She further said that, in the absence of discovery, she would have great difficulty in dealing with the respondent's statement of opposition. On April 22nd, 2004, the applicant issued her notice of motion for discovery which was refused.
Mr Justice Hardiman, in addressing the issues, referred to the unsuccessful attempt in H v Director of Public Prosecutions 2 ILRM 285, to compel the respondent to institute a prosecution or give reasons, and supply documents, relating to the decision not to do so. He said that the policy reason which could, in part, underlie the special position of the respondent was mentioned in the judgment of O'Flaherty J. as follows: "If the Director were to be subjected to frequent applications for mandamus compelling him to bring prosecutions by discomforted persons . . . his office would be stretched beyond endurance in seeking to justify that which should not require to be justified."
Mr Justice Hardiman said that it appeared that the right of the respondent to give no reasons for a decision to prosecute or not to prosecute, except in the very limited circumstances set out in Eviston v Director of Public Prosecutions 3 IR 260, was firmly established. Ms Eviston was only granted relief because: "the distinguishing feature of that case was the communication by the respondent of a decision not to prosecute to the person concerned, followed by a reversal of that decision without any change of circumstance or any new evidence having come to light."
Counsel for the applicant's reliance on Eviston v Director of Public Prosecutions was misplaced, according to Mr Justice Hardiman, who pointed out that, in that case, despite the respondent disclosing the letter he had received from a relative of the deceased asking the respondent to prefer charges against the applicant and the fact that he had reviewed the previous decision not to prosecute the applicant in that case on foot of it, the disclosure only extended to the text of the letter received by the respondent and the existence of a system of internal review but did not extend to the reasons for either the first decision not to prosecute or the second decision to the contrary effect. The reasons which actuated the decision makers were not revealed. Moreover, the case reasserted the right of the respondent not to give reasons for his decisions to prosecute or not to prosecute.
Counsel for the applicant acknowledged that the respondent's decision was not reviewable except in the limitedcircumstances set out in Eviston v Director of Public Prosecutions. But he emphasised that the court was not now addressing the question of whether that hurdle had been overcome: it was dealing solely with an application for discovery. He was entitled to this, he said, on the basis that the order would only require the respondent to list the documents he had. He said that the cases established that the decision of the respondent was, albeit in limited circumstances, capable of being reviewed and that fact, in itself grounded the entitlement to discovery. Relying on Brennan v Windle 3 IR 494, he said that the respondent was not entitled to maintain a studied silence and rely exclusively on the onus of proof being on the applicant.
He also referred, pre-emptively, to the case of A. v Minister for Justice 2 IR 93 which dealt with the question of discovery in judicial review, where Ms Justice Finlay Geoghegan first set out the ordinary principles on which discovery is ordered and continued: "It is, however, inherent in the nature of judicial review that the necessity for discovery will be more difficult to establish than in plenary proceedings. This follows the fact that in judicial review what is at issue is the legality of the decision challenged. In many instances the facts are not in dispute. Discovery will normally, but not exclusively, be confined to factual issues in dispute. It can be envisaged that an applicant for judicial review may raise a factual issue and, whilst not disputed, consider that there are documents in the possession of the respondent which would assist in the proof of the relevant related fact at the hearing, and that a court would take the view that discovery of such documents is necessary for disposing fairly of the application for judicial review. The limitation of discovery in such circumstances is that it must not be considered to be a fishing exercise. It is difficult to state in a general way the precise dividing line but it is clear that it is not sufficient for the applicant simply to make an assertion not based in any substantiate act and then seek discovery in the hope that they will exit documents which support the assertion."
The judge referred with approval to the decision of Bingham M.R. in R. v Secretary of State for Health, ex parte Hackney London Borough (Unreported, Court of Appeal July 24th, 1994). There, the Master of the Rolls expressed the test to be met by an applicant for discovery in judicial review proceedings as follows: "Have they raised a factual issue of sufficient substance, or adduced evidence which grounds a reasonable suspicion of unlawfulness, such that the application cannot fairly be resolved without discovery."
In the present case counsel relied on the disparity in the treatment of the applicant and of Ms. Kavanagh respectively, as giving the substance to the allegation of illegality in the present case, and as distinguishing it from A. v Minister for Justice. He said that this disparity indicated, prima facie, irrationality in the decision, and that that was enough to entitle him to discovery on the established principles. In the view of Mr Justice Hardiman the distinction or, as counsel called it the disparity identified in the treatment of the two girls was not such as gave rise to any prima facie apprehension of impropriety.
Equality before the law is required by Article 40.1 of the Constitution which provides that: "All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function." But, citing The State (Keegan) v Stardust Victims Compensation Tribunal IR 642, Mr Justice Hardiman said that those words did not require a rigid or mathematical equality of treatment in all circumstances. There were numerous examples of legitimate distinctions, or disparities, throughout the law, based on differences of individual functions or circumstances such as in Dillane v. Ireland ILRM 167, where the Supreme Court upheld a provision of the District Court Rules whereby costs could not be awarded against a member of the Garda Síochána who acted as prosecutor, though they could be awarded against an ordinary citizen acting as a common informer.
In this case, the complaint of inequality arose in the context of the Juvenile Diversion Scheme which was applied to the other girl but not to the applicant. The information before the court about this scheme in the relevant guidelines set out the conditions for entering into it and it was indisputable, said Mr Justice Hardiman, but that the other girl met them insofar as her circumstances were before the court. One of those was that the juvenile "has not been cautioned previously or, having been cautioned the circumstances are such that it would be deemed appropriate to administer a further caution".
Two factual matters appeared to the court to be of importance in addressing the issues. The first was that it was not obvious that, as the applicant contended, her degree of complicity in the crimes was less than that of the other girl. The fact that the other girl held the drugs for longer did not affect the degree of moral complicity involved. Secondly, it appeared from the affidavit of the applicant's solicitor that she had already had the benefit of a caution, rather than a prosecution, under the Diversion Scheme. On this topic, the solicitor says that he believes and is advised "That having the benefit of the scheme once does not act as a bar to its application on subsequent occasions." Whilst acknowledging that was true, Mr Justice Hardiman said that it was equally true that the fact that a juvenile had had the benefit of the Scheme on one occasion was a proper matter to be taken into account when considering whether she should have the benefit of the Scheme again. There was no suggestion that the other girl had any previous involvement in the Scheme, or any previous convictions. There was scope for the view that the applicant should not again be given the benefit of the Diversion Scheme, either on the basis that she had not profited from her previous experience of it, or on the basis that the vindication of the law required that a person who had not taken a previous opportunity offered by the Scheme should not be given the benefit of it on another occasion. Having regard to the fact that it was for the applicant to demonstrate that the facts "exclude the reasonable possibility of a proper and valid decision by the respondent" it was unnecessary to make further findings. That being so, Mr Justice Hardiman said that the applicant had not discharged the burden that lay on her.
Counsel for the applicant relied on Brennan v Windle 3 IR 494, where the applicant in that case had been convicted in his absence having not been served with notice of trial, in order to support the proposition that he had adduced sufficient evidence to shift the onus of proof to the respondent. Mr Justice Hardiman said that he held that the applicant there had established a prima facie case that his detention was unlawful and had "done enough" to shift the onus of proof on the question of whether he had been served with notice of his trial, but did not think that case assisted the applicant here for two reasons. Mr Brennan was able to show what was on the face of it a grave injustice: he lost his liberty after a hearing of which he was unaware. Moreover, this was undenied, so that it was beyond dispute that he had been denied one of the two basic components of natural justice, the right to be heard. That situation was to be distinguished from what happened here where, as the court already held, nothing had been proved to suggest an impropriety. Secondly, Brennan v Windle was concerned with information which did not attract the special protection available to the respondent's reasons for a decision to prosecute or not to prosecute. In a case where this special protection is relied upon there was a special evidential standard for the applicant as described in the cases cited above. That onus had to be discharged by the applicant. Whilst it was true that she did not have to discharge that onus at this stage of the litigation, the existence of this unusual onus was important to the resolution of the present issue. The granting of discovery, even if the applicant failed to get inspection, would or might undermine the special protection available to the respondent. His entitlement to that protection was beyond argument. In order to validate it, the applicant had show at least suggestive evidence of an impropriety which had not occurred.
Mr Justice McCracken and Ms Justice Macken concurred with the judgment of Mr Justice Hardiman.
Solicitors: Terence Lyons & Co. (Dublin) for the applicant; the Chief Prosecution Solicitor for the respondent.
- Paul Christopher, barrister