Procedural Fairness and Prosecutorial Discretion: Murphy v. Ireland, 2014 IESC 19

The Irish Supreme Court recently released its judgment in Murphy v. Ireland, 2014 IESC 19. Of greatest general interest is the recognition that the applicant had a limited right of procedural fairness which imposed a duty on the Director of Public Prosecutions to give reasons to send him for a non-jury trial at the Special Criminal Court on various taxation offences.

Ireland has this non-jury body because of its history with violent nationalist movements. A system of special courts is envisaged (though not provided for) by Article 38 of the Constitution in cases where

the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order...

Provision is made in Part V of the Offences against the State Act , 1939 for the operation of a Special Criminal Court. Some offences are presumptively triable in the Special Criminal Court. But in respect of others (such as taxation offences), trials can be conducted before the Special Criminal Court only if the Director of Public Prosecutions certifies that the individual could not be effectively tried before the ordinary courts.

The applicant in the present case is suspected to be the head of a criminal organization. Hence the decision to certify his case for a non-jury trial in respect of taxation offences. Amongst other things, the applicant claimed that a right of procedural fairness attached to the decision to issue the certificate, in respect of which he was entitled to reasons.

With some hand-wringing, O'Donnell J. accepted that the certification decision was justiciable, though the procedural obligations were limited:

43. Where the Director is making a decision that is subject to only limited review by a court and has the result that a trial which would otherwise take place before a jury would be heard without a jury, then the Director is under a duty to give reasons for that decision which extends to why he or she considers that the ordinary courts are not suitable for a trial of this accused. As indicated in Mallak, in an appropriate case it may be sufficient to state that no reason can be given without impairing national security. A statement of reasons that the Director of Public Prosecutions believes the accused to be a member of, or associated with, an organisation that is prepared to interfere with the administration of justice, or even justifying the non-delivery of such reasons, will be sufficient unless the accused challenges the decision and provides sufficient information to the court, to presumptively undermine the Director’s reasons. As, for example occurred in The State (Lynch) v. Cooney, it may be permissible at that stage for the Director to amplify and explain any reasons if thought desirable. It follows however that the entitlement to obtain such reasons does not carry with it any right contended for by the plaintiff to obtain the gist of information grounding such a decision, or to have a hearing or to make submissions before a decision is made. The facts and argument in a case such as this lie in a fairly narrow compass. The question in any case is whether the Director of Public Prosecutions was entitled to consider that the ordinary courts were inadequate to secure the administration of justice in a particular case. Review of such a decision should be the exception and never the routine, and only when an accused person can put forward a substantial case that the decision making process has miscarried. The legal position outlined above balances the desirability of reasoned decision making to strengthen the administration of justice with the necessity to ensure that the process is tightly controlled to avoid routine disclosure and review which could undermine it.

O'Donnell J. was anxious to stress the need for balance (see also para. 31). The balance here seems heavily tilted in favour of the Director of Public Prosecutions, because it will often be difficult to obtain information to to "presumptively undermine" the Director's reasons (though see para. 38), but the Irish courts have been very slow to embrace the justiciability of prosecutorial decisions. Murphy is a halting step in the right direction.

However, the Court's earlier decision on the right to reasons, Mallak v. Minister for Justice, [2012] IESC 59, was heavily qualified. O'Donnell J. said it was "nuanced" (at para. 40) and described it as turning on a statutory obligation to give reasons under freedom of information legislation:

Mallak undoubtedly brings the common law on the duty to give reasons into line with the obligations of statute, but it does not address the question whether the common law requires decision makers to go further than the statutory requirement.

I suggested at the time that Mallak might be qualified in future decisions, but the freedom of information qualification comes as a surprise. An assiduous re-reading of Mallak reveals that it was deemed "material" that there was a statutory obligation (at para. 21) but the analysis of the duty to give reasons was expansive and paid little attention to the freedom of information legislation.  

Even these expansive comments left plenty of scope to qualify the duty to give reasons. As O'Donnell J. noted, Mallak envisaged situations in which a refusal to give reasons would be sufficient. This would have been enough to assuage any concerns the Court may have had about intrusive judicial review of sensitive decisions based on national security. Murphy is evidence, then, that judges still have some discomfort in extending the full range of procedural protections to prosecutorial discretion and national-security matters.

And unfortunately for the applicant here, he did not challenge the certificate in a timely manner. So even if his right to procedural fairness were violated, it is now too late to do anything about it.