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Has the Accused any right to challenge the DDP’s Decision to Prosecute?

Has the Accused any right to challenge the DDP’s Decision to Prosecute?

A somewhat unusual set of circumstances arose recently, which led me to ponder, what right an Accused has, to question the decision making of the DPP.

In short, a 20 year old male was arrested for the investigation of an allegation of criminal damage. Whilst detained in the Garda Station, he managed, during the course of a cigarette break, to escape and was eventually apprehended, 2 days later.

Arising out of the above, he received four charges, namely, one count of criminal damage, one count of escape from lawful custody, one count of possession of cannabis and one count of assaulting a Garda, causing harm.

The matter appeared in the District Court list and was adjourned, so that the Gardaí could obtain the DPP’s directions.

The directions came back, after approximately three weeks and the DPP was agreeable to all four charges, proceeding in the District Court, on a plea of guilty only.

This created a concern for me.  I believed that the DPP was incorrect in grouping the charges together, as a singular set of charges.. I considered that even though they allegedly occurred over a two day period, while the accused was on an apparent “spree”, they were distinctly separate charges in substance.

Also, my client was adamant he did not assault a Guard and would not be pleading guilty, to this charge.

I enquired of the DPP, through the Gardaí, whether he could enter a plea of guilty, on the possession charge, the criminal damage charge and the escape from lawful custody charge, in the District Court and plead not guilty and be sent forward for trial in the Circuit Court, on the single assault charge.

They replied in the negative, as it was an all or nothing deal.

Therefore, if the accused adopts a not-guilty approach to the assault, according to the DPP’S directions, he would then have to be sent forward to the Circuit Court on all four charges.  This would have the effect of dramatically increasing the potential maximum sentence he could receive, if convicted. The maximum sentence in the District Court is 2 years, whereas in the Circuit Court, on the criminal damage charge, it is 10 years, the assault is 5 years, the drugs charge is 7 years and the escape charge is 5 years.

In practice, an Accused would very rarely receive the maximum sentence and numerous factors, have to be taken into account by the Judge, when deciding upon an appropriate sentence.

However, I believed that the position being taken by the DPP prejudiced my client greatly and it was at this point I began to consider whether my client could judicially review the DPP’S decision, to accept summary disposal in the District Court on all charges, on a plea of guilty only and also to refuse to differentiate or split the charges.

It quickly became apparent to me, that the DPP enjoys a partial immunity from review.

Up until the 1980’s, it actually enjoyed an absolute immunity. This changed with the judgement in State (McCormack) v Curran1, where the Supreme Court differed with the High Court and held that in certain circumstances the DPP’s decision can be reviewed.

The Supreme Court was of the view that if a decision was arrived at due to mala fides, improper motive or improper policy, then it could be subject to review by a court. This view has been copper fastened, by subsequent cases such as H v DPP2 and Eviston v DPP3.

The Courts, however, have been at pains to emphasise that the right to review the DPP will only be allowed in extremely limited circumstances and a high threshold of proof will need to be met before a review would be considered.

The main reasoning for the special protection afforded to the DPP, is grounded on the doctrine of separation of powers.

The DPP’s function is viewed as an executive function and one not to be interfered with by the Judiciary. Further, if reviews of charging decisions were allowed, in the main, the whole criminal court landscape would grind to a halt with the backlog of cases and reviews. Furthermore, there is a belief that the prosecutor’s office would be stifled in their function, if their decision making was open to constant review and that a culture of second guessing themselves would develop.

It is against this background that the Accused must consider challenging the decision to refuse to allow him go forward to the Circuit Court on the assault charge solely.

There is potentially an application for review, due to improper decision making policy, because of the refusal to differentiate between the charges.  This refusal prejudices an accused’s right to plead not guilty to one charge, due to the disproportionate increase in risk, of taking the full set of charges to the Circuit Court.

The case law, however, would seem to indicate that the Accused will have a limited chance of success if he brings such an application for Judicial Review.

My hunch is that he will cut his losses and plead guilty to all charges in the District Court.

However, if he does plead guilty to all the charges in the District Court, this would only reinforce my view that the DPP’s decision to deal with the charges as a set, as opposed to individually would appear to be a tactical decision to force the Accused’s hand and quench his desire (and entitlement) to contest the assault charge.


Colin Morrissey

English Leahy Solicitors