The recent case of Kelly & Anor v. District Court Judge Ryan [2013] IEHC 321 confirms the right of individuals to bring private prosecutions.  The High Court held that the common law right of an individual to privately prosecute an offence, including indictable offences, had not been affected by the abolition of the preliminary examination procedure before the District Court by the Criminal Justice Act, 1999 (the 1999 Act).

The Facts

A hotelier, Mr Halpin, who owed significant sums to IBRC, sought to bring a private prosecution against two IBRC employees alleging offences of dishonesty, contrary to section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001.  IBRC had appointed a receiver to Mr Halpin's companies, and he alleged that the IBRC employees had falsely represented to him that IBRC was prepared to continue in a process that would allow his business to stay trading.

The two IBRC officials, Ms Kelly, (a case manager with the banks' Recovery Management Division) and Mr Buckley (a former employee of IBRC and Director of Banking) denied the charges, and submitted to the High Court that the right of private prosecution in respect of an indictable offence had been effectively abolished by the 1999 Act, and that this legislative development had effectively overtaken the decision of the Supreme Court in The State (Ennis) v Farrell [1966] I.R. 107. 

In The State (Ennis) v Farrell, the Supreme Court held that the right of private prosecution had survived the enactment of the Constitution.  Article 30.3 of the Constitution provides that: "All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the people and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose."

Given the importance and novelty of the issues at stake in this case, Hogan J. invited counsel for the DPP to appear as amicus curiae.  The DPP submitted that the right of private prosecution had survived the enactment of the Constitution and the amendments effected by the 1999 Act.

The Decision

Hogan J. rejected the argument that the 1999 Act abolished the right of private prosecutions.  He reasoned that the potential for private prosecution functions as an external check against the risk of a rare lapse or oversight on the part of the DPP.  However, he highlighted that having commenced the prosecution, no further practical step could be taken by Mr Halpin without the express consent of the DPP.   Absent such positive consent, the prosecution must be struck out by the District Court.

Hogan J. noted that the evidence of inducement or dishonesty to support the prosecution in this case was "slender and tenuous", but concluded that it would be premature for the High Court to interfere with a matter which was pre-eminently within the discretion of the District Court to examine and to consider. 

Hogan J. also considered whether the prosecution was an abuse of process by reason of an improper motive.  He conceded that while Mr Halpin felt very strongly about his treatment by IBRC, the mere fact that he nursed a private grievance did not in itself mean that the prosecution was tainted by improper motives or by malice.  He stated "the vindication of private grievances is nearly always a motivation for the private prosecutor."

Comment

It remains to be seen whether the DPP will progress Mr Halpin's prosecution.  As the effective control of all prosecutions on indictment remains with the DPP, an individual can do nothing more than launch the prosecution proceedings and it is then a matter for the DPP to decide whether to take up the running of theprosecution.

In view of our Constitution, the decision by Hogan J. is not surprising.  However, in practice it is unlikely to be widely invoked and such prosecutions, when invoked, will be subject to criminal probative standards (i.e. proving the guilt of the accused beyond reasonable doubt).

The judgment is available here.