Donal O'Sullivan (applicant) v District Judge Wallace, the Commissioner of the Garda Siochana, the Director of Public Prosecutions and the Attorney General (respondents).

Judicial Review - Director of Public Prosecutions - Grounds for review of a decision of the Director.

The High Court (Mr Justice Morris); judgment delivered 19 April 1999.

In order to successfully apply for judicial review of a decision of the Director of Public Prosecutions, it was necessary to show that the Director in making his decision, did so mala fide or was influenced by improper motive or improper policy, or had abdicated his functions.

Mr Justice Morris so held in refusing an application for prohibition of a criminal trial for assault in circumstances where the other party involved in the incident had not been charged.

Vincent Browne BL for the applicant; Feichin McDonagh BL for the third respondent.

Mr Justice Morris said that the applicant had been given leave to apply by way of an application for judicial review for an order of prohibition prohibiting the respondent from taking any further steps in the criminal proceedings the subject matter of the application. The applicant claimed that he had been assaulted by another person and had reported the incident to the Garda. Some weeks later, he was received a summons to answer a charge of assault on that person in Macroom District Court, and he now claimed an order of prohibition against the respondents from prosecuting the case against him until such time as similar proceedings were brought against the other person involved.

Mr Justice Morris said that what the court was being asked to do was to exercise a supervisory function over the decision made by the DPP in this case, which was to prosecute the applicant and not the other person involved in the incident. It was well-established since the decision in State (McCormack) v Curran [1987] ILRM 225 that the court might only review the decision of the DPP in certain limited circumstances. That case had been followed in H v Director of Public Prosecutions [1994] 2 IR 589 and its effect had been summarised by the High Court ( Mr Justice Kelly) in Landers v Garda Compensation Board [1997] 3 IR 363 as follows: that decisions of the DPP were reviewable by the High Court, and that such a review might only take place if it was demonstrated that the DPP in making his decision did so mala fide or was influenced by improper motive or was influenced by improper policy or had abdicated his functions. Mr Justice Morris said that to succeed in this application, the applicant would have to show that one of those circumstances arose. All that had been shown was that one party to the assault had been prosecuted and the other had not. It was not possible for the applicant to establish to the satisfaction of the court that it was made for one of the reasons which would entitle the court to reasonably infer that the decision was perverse, inspired by improper motives or that the DPP had abdicated his functions. Accordingly, the relief was refused.

Solicitors: Frank Buttimer & Co (Cork) for the applicant; Chief State Solicitor for the respondents.