GE -v- DPP Supreme CourtJudgment was delivered on October 30th, 2008, by Mr Justice Kearns; Ms Justice Denham and Mr Justice Hardiman concurring
Judgment
In a case where a charge of unlawful carnal knowledge was withdrawn following the CC case, and a charge of rape substituted, this charge was grossly different and disproportionate from the original charge and should not have been brought. The prosecution in its present form should therefore be prohibited.
Background
The case originated in an incident which took place in February 2003 when the applicant was aged 20 and the complainant was three weeks short of her 17th birthday. They were slightly acquainted, and met outside a disco in Wexford. The applicant had borrowed the keys to a van and he and the complainant walked to the van, where they started kissing. This developed into a sexual encounter, which involved the removal of some of the complainant's clothes and an attempt at least of penetrative intercourse by the applicant.
The complainant subsequently alleged that the applicant had raped her. When he became aware of this he presented himself at the local Garda station and made a detailed statement in which he maintained that at all times the sexual encounter was consensual.
The gardaí forwarded the file to the Director of Public Prosecutions, and in February 2004 the professional officer in this office concluded that there was no prospect of securing a conviction for rape or attempted rape. He suggested instead mounting a prosecution for an offence contrary to Section 2 (2) of the Criminal Law Amendment Act 1935, outlawing sex with a girl under the age of 17, for which the maximum sentence is two years' imprisonment.
The direction to the State Solicitor indicated that if the applicant wished to plead and be sentenced in the District Court, the DPP would consent to this - otherwise the matter would be sent forward to the Circuit Criminal Court. The applicant's solicitor was informed of this.
When the applicant was charged he elected for trial in the Circuit Criminal Court. The case was adjourned to February 2005 for service of the book of evidence, and he was sent forward for trial.
In April of that year the case came before the court, but was adjourned pending the outcome of the Supreme Court case on the constitutionality of Section 1 (1) of the 1935 Act, relating to girls under 15, which came in May 2006. It was further adjourned to obtain clarity on section 2 (2) of the Act, which came in July that year in the A case. The deputy director had already noted that it was likely that the case would be dropped. At this stage the possibility of a charge of rape was not being considered.
Following the A case the professional officer considered the case again and, without any new evidence, decided there was a case for bringing a rape charge. The Section 2 (2) charge was dropped and the applicant was rearrested in October 2006 and charged with rape, for which the maximum sentence is life imprisonment.
In December he brought judicial review proceedings against the new prosecution, challenging it both on the grounds of delay and that the substitution of a rape charge for the Section 2 (2) charge was a breach of the DPP's own guidelines and constituted unfair procedures.
The High Court refused his application, and the applicant appealed this decision to the Supreme Court. His counsel argued that the case was analogous to the Eviston -v- DPP case, where a woman had been informed she would not be prosecuted following an accident in which her tyre blew out and another driver was killed, but, after an application from the father of the deceased for a review of the decision by the DPP, this decision was reversed and she was prosecuted for dangerous driving causing death. This prosecution was stopped by the Supreme Court.
Mr Justice Kearns said that traditionally, the courts have been extremely reluctant to interfere with the discretion of the director when deciding whether or not to prosecute, confining interventions to cases where decisions were motivated by an improper policy or where male fides can be established.
He pointed out that in the Eviston case Ms Eviston, when told of the decision not to prosecute, had not been told that this decision could be reviewed. She was therefore subjected to a "further and entirely unnecessary layer of anxiety and stress". In the State (O'Callaghan) -v- Ó hUadhaigh the court had stressed that justice could only be administered when the courts had regard not only to fairness and fair procedures, but to the dignity of the individual.
Decision
He said that this case possessed none of the disquieting factors that were present in the Eviston case. No question of mala fides arose, and there was no suggestion of an improper policy in relation to the proposed prosecution.
The applicant was one of a number of people whose cases were adjourned in the aftermath of the CC case. It was both appropriate and necessary for the DPP to review this case, and it was open to him to substitute some other charge for that of attempted carnal knowledge under Section 2 of the 1935 Act.
"It is the choice of the charge of rape by way of substitution which created the difficulty in this case," he said. "It seems clear from the affidavit of Mr David Gormally, senior prosecution officer in the office of the respondent, that a firm view had been taken within the office that a rape charge against the applicant was not warranted.
"Given that no new or additional evidence at any time emerged from the time when the original charge of attempted carnal knowledge was brought, the adoption of the rape charge, which upon conviction provides for the possibility of a sentence of life imprisonment, represented an approach which was both inconsistent with the view taken earlier and a ramping up of major proportions in the scale of criminal behaviour alleged against the applicant."
He pointed out that the maximum sentence for the original charge of unlawful carnal knowledge was two years. "It is the magnitude of the quantum leap from the original charge to that now preferred which persuades me that the prosecution of the applicant on a charge of rape should be restrained on the basis that fair procedures require that any alternative charge brought should not be one which, notwithstanding the absence of new or additional evidence, is grossly different and disproportionate from the original charge," he said, allowing the appeal. The full judgment is on www.courts.ie
Jeremy Maher SC, Aidan Doyle BL, instructed by M J O'Connor, Killarney, for the appellant; Shane Murphy SC, Paul Anthony McDermott BL, instructed by the Chief Prosecution Solicitor, for the DPP.