McCabe, Re Judicial Review

Factual and Procedural Background

The Plaintiff sought judicial review to quash decisions made by the Director of Public Prosecutions (DPP) in 1983 and the Public Prosecution Service (PPS) in 2008 not to prosecute any individual for murder, manslaughter, or related offences arising from the death of his wife on 9 July 1981. The death occurred after the Plaintiff's wife was struck by a plastic baton round fired by police officers during civil unrest in The City. An inquest was held, and civil proceedings for compensation were settled in 1984 with an admission that the deceased was an innocent party.

The police investigation involved statements from officers and a video filmed by two Canadian civilians depicting the events. The video contradicted some police accounts, particularly regarding the presence of petrol bombs and obstructions on the road. Following investigations and reconsiderations, the DPP decided not to prosecute in 1983 and reaffirmed this position in 1984 after the inquest.

In 2007-2008, following renewed correspondence from the Plaintiff’s solicitors, the PPS provided reasons for not prosecuting but did not undertake a fresh reconsideration of the original decision. The Plaintiff subsequently applied for judicial review in 2008, some 25 years after the initial decisions.

Legal Issues Presented

1. Whether the decisions by the DPP and PPS not to prosecute any individual for murder, manslaughter, or related offences were lawful, rational, and free from procedural impropriety.
2. Whether there was a failure by the DPP/PPS to consider prosecutions for offences of perjury, perverting the course of justice, or conspiracy to pervert the course of justice arising from discrepancies between police evidence and video footage.
3. Whether the delay of approximately 25 years in seeking judicial review was excusable and whether the court should exercise discretion to extend the time for bringing the application.

Arguments of the Parties

Appellant's Arguments

• The initial decisions not to prosecute were legally flawed, irrational, and failed to consider all relevant evidence, including the video footage and discrepancies in police testimony.
• The DPP/PPS neglected a continuing obligation to consider prosecution for offences such as perjury and perverting the course of justice arising from conflicts between police statements and the video evidence.
• The exceptional circumstances of the case, including the death caused by state agency and allegations of cover-up, justified extending the time limit for judicial review despite the long delay.

Respondent's Arguments

• The decisions not to prosecute were based on careful and professional consideration of the evidential and public interest tests, and were open to the DPP/PPS.
• No fresh reconsideration of the original decision occurred in 2008; the correspondence was only explanatory and responsive to inquiries.
• The delay in bringing the judicial review application was excessive and unjustified, and extending time would be unfair and disproportionate, especially considering the death of key officers involved.
• The absence of any recommendation or consideration for prosecution for perjury or related offences was not a procedural failing that warranted judicial intervention.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re Adams Application for Judicial Review [2001] NI 1	Grounds for challenging DPP decisions including unlawful policy, irrationality, improper motive, and bad faith.	Identified irrationality as the relevant ground applicable to the case; other grounds were not engaged.
Sharma v Antoine and Others [2006] UKPC 57	Reluctance of courts to interfere with prosecutorial discretion due to wide discretion and public interest considerations.	Supported the principle that judicial review of prosecution decisions is exceptional and requires a high threshold.
R v Director of Public Prosecutions, ex parte Manning [2001] QB 330	Standard of review for decisions not to prosecute balancing informed judgment and need for judicial oversight.	Emphasized the evidential and public interest tests and the high threshold for interference with prosecutorial discretion.
R v Bateman [1925] 19 Criminal Appeal Reports 8	Definition of gross negligence in criminal law context.	Applied to assess whether evidence was sufficient to meet the threshold for manslaughter.
Re Shearer’s Application [1993] 2 NIJB 12; Re McCabe’s Application [1994] NIJB 27a; Re Zhanje’s Application [2007] NIQB 14	Importance of promptness in applications for judicial review and considerations for extending time.	Used to assess the delay in bringing the application and the absence of good reason to extend time.
In Re Marie Louise Thompson [2004] NIQB 62; In Re Julie Doherty [2004] NIQB 78	Considerations of fairness and reasonableness in delay for judicial review in cases involving deaths attributed to security forces.	Supported refusal to extend time given absence of good reason and prejudice to original decision-makers.

Court's Reasoning and Analysis

The court carefully examined the factual matrix including police statements, video evidence, and inquest findings. It recognized the evidential and public interest tests applied by the DPP and PPS in deciding not to prosecute. Although the video contradicted some police accounts, the court found that the DPP’s decision was not irrational in the Wednesbury sense, as there was sufficient evidence to suggest the presence of petrol bombers justifying the police’s actions.

The court noted that no prosecution was ever directed or considered for offences of perjury or perverting the course of justice, despite conflicts between police statements and video evidence. The court concluded that such consideration ought to have been given but did not find this omission sufficient to invalidate the decisions not to prosecute.

The court placed significant emphasis on the excessive delay of approximately 25 years in seeking judicial review without any adequate explanation. It held that this delay was neither fair nor reasonable and that extending time would be inappropriate, particularly as key individuals had since died, rendering prosecution impossible and any such action unfair and disproportionate.

Accordingly, while sympathetic to the Plaintiff’s distress, the court prioritized procedural fairness, finality, and the integrity of original decision-makers in denying relief.

Holding and Implications

The court REFUSED the application for judicial review.

The direct effect of this decision is to uphold the original decisions of the DPP and PPS not to prosecute any individual in connection with the death of the Plaintiff’s wife and related alleged offences. The court declined to extend the time for judicial review due to the unjustified and unprecedented delay. No new precedent was established, and the ruling reinforces the high threshold for judicial intervention in prosecutorial discretion and the importance of promptness in seeking judicial review.