The DPP acted in an "arbitrary and perverse" manner in deciding to prosecute a woman in relation to a road accident involving a young man's death in circumstances where it had earlier been decided not to prosecute, the High Court has ruled. Mr Justice Kearns found the DPP, in reversing his decision not to prosecute Ms Linda Eviston and replacing it with a decision to prosecute her for dangerous driving causing death, had failed to comply with his own guidelines for reviewing cases and with his own general policy regarding prosecutions. The judge stressed he was "specifically not holding" the DPP had acted in bad faith or from an improper motive. In all the circumstances, and because he believed it would be oppressive and unfair to Ms Eviston, of Killarney, Co Kerry, to allow the prosecution to continue, he would restrain the DPP from taking any further steps to prosecute her for dangerous driving causing the death of Mr Anthony Moynihan jnr, of Mallow, Co Cork. Mr Moynihan died when his car collided near Mallow with a car driven by Ms Eviston on June 28th, 1998. In early December 1998, she was told the DPP was not prosecuting her in relation to the accident. But on December 23rd, 1998, she learned it had been decided to prefer charges of dangerous driving and dangerous driving causing death. The DPP said a letter of December 16th, 1998, from Mr Anthony Moynihan snr, father of the deceased man, to the then DPP, Mr Eamonn Barnes, had prompted a review of the case, which review led to the decision to prosecute. In the letter, Mr Moynihan said his family was "devastated" by the decision not to prosecute Ms Eviston.
The judge said the Prosecution of Offences Act 1974 contained no provision for internal appeals or reviews by the DPP. A decision of any professional officer within the DPP's office was a decision of the DPP. In this case, the reason for the review consisted solely of the letter by Mr Moynihan snr. He presumed the DPP had regard to that part of the letter referring to the family's distress at the decision not to prosecute. The letter did not point towards any new element in the case.
In relation to the decision to reverse the initial decision not to prosecute Ms Eviston, the judge said there was no suggestion any new fact, material or witness had become available.
For the DPP to unmake his original decision and reinstate a prosecution in such circumstances "seems to me to be arbitrary and perverse", the judge said. "No sensible person" who applied their mind to the matters to be decided by the DPP could have arrived at that decision.
The DPP's own guidelines for review stated a person seeking a review had to advance a reasonable basis for that request and no review would be granted if any particular factor raised had already been exhaustively considered. No reasonable basis for review was advanced and the factor raised - the distress of the Moynihan family - must be taken as having already been exhaustively considered by the DPP. No new facts were raised and there was no suggestion the DPP or his officials had concluded the original decision was "incorrect". In those circumstances, the DPP had failed to comply with the review guidelines.
