In a case believed to be the first dealing with the DPP's right to reverse a decision relating to prosecution, the Supreme Court has ruled the DPP acted unfairly in deciding to prosecute a Co Kerry woman in relation to a road accident involving the death of a young man.
By a four to one majority, the court yesterday held Ms Linda Eviston, Gortreagh, Fossa, Killarney, was not given fair procedures as the DPP had earlier decided not to prosecute her, had communicated that decision to her and then reversed it without any change of circumstances or any new evidence coming to light. The court dismissed the DPP's appeal against the High Court's upholding of Ms Eviston's legal challenge to the decision to prosecute her with dangerous driving causing the death of Mr Anthony Moynihan jnr, Coalpits, Cullen, Mallow, Co Cork on June 28th, 1998.
However, while dismissing the DPP's appeal on the grounds of unfair procedures, the Chief Justice, Mr Justice Keane, held that the DPP is entitled, as a matter of law, to reverse a decision already arrived at not to prosecute, even in the absence of new evidence or different factors, if the DPP is of the view his original decision was wrong.
The sole dissenting judge, Mr Justice Francis Murphy, said that, while disagreeing with the other Supreme Court judges, he had a sense of relief Ms Eviston would not be prosecuted as this would be understood, "incorrectly but nevertheless widely" as "interference with the judicial process" insofar as that involved investigation of the alleged crime and the decision to prosecute that.
Mr Moynihan jnr died when his car collided near Mallow with a car driven by Ms Eviston. Engineers for Ms Eviston found a wheel taken from her car boot to replace a puncture she had had shortly before the accident had deflated completely causing, in their view, a swerving action of the car resulting in it going out of her control.
In early December 1998, she was told the DPP was not prosecuting her but on December 23rd, 1998, she learned it had been decided to prosecute her. The DPP said a letter of December 16th from Mr Moynihan jnr's father to the then DPP, Mr Eamonn Barnes, prompted a review of the case which review led to a decision to prosecute. In his letter, Mr Anthony Moynihan snr said his family was "devastated" by the decision not to prosecute and he had "personally contacted Minister John O'Donoghue in relation to this matter".