The court held that the wrong charge had been preferred by the DPP and that the DPP had made representations to the District Court that the charge should be amended.

The court applied the case of Eviston v. DPP [2002] IESC 62 and held that there was actual prejudice caused to the man in circumstances where the charge appeared to be incorrect.

Background

The applicant in the case was stopped by Gardaí in May 2018 due to the manner of his driving. The Garda formed a suspicion that the applicant was driving while intoxicated and arrested him. It transpired that the applicant tested positive for cannabis while was over the prescribed limit.

As such, the applicant was charged with an offence pursuant to section 4(1) of the Road Traffic Act 2010. However, in June 2019, the applicant’s solicitor wrote to the chief prosecution solicitor arguing that the applicant had been charged incorrectly. It was argued that the applicant should have been charged under section 4(1A) of the 2010 Act, which only carried a maximum sentence of mandatory disqualification for one year rather than four years under section 4(1).

In December 2019, the DPP indicated that it was bringing a motion to amend the summons to reflect the fact that section 4(1A) was the correct charge. The application was moved by the prosecuting Garda, who stated to the District Court that the wrong charge had been preferred. The applicant objected to the motion.

The District Court refused to amend the summons and the prosecuting Garda confirmed that the prosecution would proceed with the existing charge against the applicant. In February 2020, the applicant’s solicitor in correspondence stated that it would be an abuse of process to allow the prosecution to continue when it had been expressly admitted that the wrong charge had been preferred in the case.

In March 2020, the chief prosecution solicitor stated that the District Court judge had been correct to refuse the amendment and that the amendment application had been made in error. It was also claimed that the evidence was satisfactory to prosecute the applicant under section 4(1).

The applicant subsequently brought judicial review proceedings seeking to prevent the prosecution. The DPP submitted that the judicial review was brought outside the time allowed and said that the application should be refused.

Further, the DPP submitted that the applicant was not prejudiced in the case because he had always been charged under section 4(1). As such, there was no change or reversal in the charge which could cause him difficulty. The DPP sought to distinguish Eviston on the basis that there was evidence in that case of stress and anxiety caused by a change in the charge, which was not present in the current context.

High Court

Delivering judgment in the case, Ms Justice Miriam O’Regan began by considering whether to extend the time for the applicant to bring the proceedings. The court noted the applicant’s submission that it was necessary to correspond with the DPP’s office after the amendment application was refused. It was said that the applicant was right to provide a further invitation to the DPP to withdraw the charge before issuing the judicial review proceedings.

The court held that it was appropriate to extend time in the case. It was said that it was reasonable to seek written confirmation of the DPP’s opinion in circumstances where there was an assertion in the District Court that the wrong charge had been preferred and that they intended to amend the summons.

That request for confirmation was made within three months of the District Court decision and it took four weeks for the DPP to reply. There was also the further complication of the Covid-19 pandemic, the court said.

Turning to the substantive issue in the case, the court considered the Eviston case, where it was held that a reversal of the DPP’s original decision not to prosecute a case where there was no new facts or evidential material could be regarded as a breach of fair procedures. A reversal decision was prima facie reviewable for fair procedures even though the DPP had a right not to provide reasons for the reversal of a previous decision.

The court also considered BM v. DPP [2021] IEHC 332, where it was held that a reversal of a decision to prosecute was not in breach of fair procedures where certain factors existed. These factors included that the applicant was represented by a solicitor, and therefore should have been aware that a decision to discontinue may be reversed. A further factor was that the case did not disclose any matter such as additional stress and anxiety, delay, or prejudice which would cause a breach of fair procedures.

Applying the case law to the facts, the court noted that the DPP did not mention the representation made by the prosecuting garda to the District Court that the wrong charge had been preferred. The court held that this was an important factor in the case. It showed that there was genuine prejudice caused to the applicant, the court held.

It was held that that DPP could have addressed the representations to the District Court in the judicial review proceedings but chose to remain “completely silent” on the issue.

In all the circumstances, the court was satisfied that the continued prosecution of the applicant under section 4(1) was a breach of fair procedures.

Conclusion

The court granted the injunction restraining the further prosecution of the applicant by the DPP.