Court of Appeal: District Judge erred in refusing to hear public interest immunity application

The Court of Appeal in Northern Ireland has held that a District Judge in the Magistrates’ Courts was not correct in refusing to hear an application made by the Public Prosecution Service (PPS) asserting public interest immunity of a document sought for disclosure.

Delivering the judgment of the court, Mr Justice Mark Horner also held that the District Judge was incorrect in finding that the case should be stayed as an abuse of process.


Shane Devine owns and operates a vehicle, which operates out of the Republic of Ireland as “Devine’s Chauffeur Services” (DCS). 

On 23 October 2015, the Driver and Vehicle Agency (DVA) was investigating an allegation that taxis which were not lawfully licensed were operating at the SSE Arena during a One Direction concert. 

After he dropped off a passenger at the SSE Arena, two vehicle examiners from the DVA spoke to Mr Devine, who said that his understanding was that the vehicle was booked as a continuous service which originated in the Republic of Ireland and had multiple pick-up and drop-offs within Northern Ireland. 

Mr Devine confirmed that he did not have a Northern Ireland PSV licence, a Taxi Operator’s licence or a Taxi Driver’s licence, but claimed to have all necessary accreditation in ROI including a PSV driver’s licence.

Mr Devine was subsequently summonsed in respect of two offences under the Taxis Act (Northern Ireland) 2008 and an offence under the Road Traffic (Northern Ireland) Order 1981

The PPS relied on the evidence of the vehicle examiners, and Mr Devine’s solicitors sought disclosure of documents “including who made the complaint about him and all material which disclosed any information that may have been communicated by the DVA examiners at any time relevant to the case”. In February 2017, Mr Devine served an application under s.8 of the Criminal Procedure and Investigations Act 1996 seeking all the aforementioned documents, and:

  • Full details of any surveillance or monitoring of Mr Devine on 23 October 2015 or prior to that date;
  • The authorisation permitting any surveillance;
  • Confirmation if any commercial or other relationship existed between the DVA and/or PPS and the person/organisation which initiated the complaint.     

Hearing before the first District Judge

Before a District Judge (Magistrates’ Courts) in May 2017, Mr Devine claimed that department officials were watching him on the night in question following “a complaint”, and that no details of this or how the officials were lying in wait for him were ever produced. At the request of the District Judge, the PPS provided him with the materials sought by Mr Devine and ruled that the materials, together with unused material, fell to be disclosed – however the District Judge did not give any reasons for his decision.

Thereafter, the  unused material that was not deemed to be sensitive and a redacted version of the sensitive material was disclosed to Mr Devine. In the absence of any clear rationale from the District Judge, the PPS contended that it was not clear if the redacted version would be sufficient.

Hearing before the second District Judge

In June 2017, Mr Devine made an application pursuant to s.8(5) of the Criminal Procedure and Investigations Act 1996 which, as required, identified an important public interest

After the first District Judge recused himself, the second District Judge felt the appropriate way forward was to bring a disclosure application pursuant to Article 158A of the Magistrates’ Courts (Northern Ireland) Order 1981 and refused to hear a PPS application pursuant to s.8(5) of the Criminal Procedure and Investigations Act 1996 – regarding the PPS’s application, which was not pursued before the first District Judge, as “an abuse of process”.  

Thereafter, having considered Mr Devine’s application, the District Judge refused to entertain a public interest immunity application and said it amounted to “harassment of the court”. 

In January 2018, taking into account the amount of time which had passed since commencement of the proceedings, the District Judge ruled that the proceedings should be stayed.

Questions stated to the Court of Appeal

In April 2018, the District Judge stated the following questions for consideration by the Court of Appeal:

  1. Whether, as a matter of law, the court was right to determine that the intelligence document containing information passed to the DVA relevant to the investigation of Mr Devine was capable of assisting the case for Mr Devine or undermining the case or the prosecution;
  2. Whether, as a matter of law, the second District Judge was right in the circumstances in refusing to hear and grant the application made on behalf of the PPS to assert public interest immunity of the intelligence document containing information passed to the DVA; and
  3. Whether, in all the circumstances as a matter of law, the court was correct to find that the case against Mr Devine should be stayed as an abuse of process.

Court of Appeal Discussion

Delivering the judgment of the Court, Mr Justice Horner said it was unnecessary to reach a decision on the first question given his conclusions on questions 2 and 3.

Answering question 2 in the negative, Mr Justice Horner said the second District Judge failed to make a distinction between an application under the 1996 Act and an application for disclosure. Mr Justice Horner explained that the first District Judge had not considered any public interest immunity application under s.8(5) of the Criminal Procedure and Investigations Act 1996 – therefore the second District Judge should have dealt with the s.8(5) application, considering, inter alia, whether the failure to disclose the identity of any informer or witness who had supplied information was necessary to avoid a miscarriage of justice. Mr Justice Horner added that it was difficult to see how the identity of the person who supplied the information about Mr Devine could lead to a miscarriage of justice.

Answering question 3 in the negative, Mr Justice Horner said it was clear that the prosecution had been listed many times before different district judges, but was not persuaded that the delay to date was such that it prejudiced a fair trial, or that it produced any genuine prejudice or unfairness to Mr Devine.

  • by Seosamh Gráinséir for Irish Legal News

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