Carlin v DPP

Factual and Procedural Background

The Appellant was charged on 14 July 2001 with assault causing harm to the Complainant in The City, contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997. He was released on station bail to appear before the District Court on 4 October 2001 but failed to attend because he was then serving a custodial sentence in Northern Ireland. A bench warrant issued on 1 November 2001.

After his release in February 2003, the Appellant’s solicitor inquired about the charge. On 5 November 2003 the Respondent (the Director of Public Prosecutions) directed that no prosecution would proceed and the bench warrant was cancelled. Following representations from the Complainant’s family, the Respondent reviewed the file and on 8 April 2004 issued a fresh direction to prosecute. Because the Appellant was outside the jurisdiction, a European Arrest Warrant was endorsed on 15 November 2005. He was arrested in Northern Ireland on 18 May 2006 and surrendered on 25 May 2006.

The Appellant sought judicial review by way of prohibition, arguing that the reversal of the decision not to prosecute, the attendant delay, and alleged loss of photographic evidence rendered a fair trial impossible. The High Court (Judge Murphy) refused relief, and the present appeal was brought to the Supreme Court.

Legal Issues Presented

1. Whether the Respondent’s reversal of an earlier decision not to prosecute, in the absence of new evidence and without warning the Appellant, breached constitutional fair-procedure requirements and should be prohibited.
2. Whether the delay between the initial non-prosecution decision (November 2003) and the renewed prosecution (European Arrest Warrant executed May 2006) created prejudice—through stress, anxiety, or lost evidence—sufficient to justify halting the trial.

Arguments of the Parties

Appellant's Arguments

• The Respondent made three conflicting decisions (prosecute, not prosecute, prosecute again) without offering reasons, thereby violating fair procedures recognised in Eviston v Director of Public Prosecutions.
• A 30-month delay and the loss of photographic evidence prejudiced the defence and caused significant stress and anxiety, undermining the prospect of a fair trial.
• The Respondent failed to alert the Appellant that the non-prosecution decision was subject to review, creating legitimate expectation that the matter was closed.

Respondent's Arguments

• No obligation exists to provide reasons for prosecutorial decisions absent proof of mala fides; the Respondent is constitutionally independent in deciding whether to prosecute.
• The Appellant produced minimal evidence of stress, anxiety, or evidential prejudice; normal stress inherent in criminal proceedings does not warrant prohibition.
• Procedural developments (e.g., enactment of the European Arrest Warrant Act 2003) and the Appellant’s own absence from the jurisdiction explain much of the delay.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court (Judgments of Judge Denham concurring with Judge Fennelly) reaffirmed the Respondent’s constitutional independence and the limited grounds on which prosecutorial decisions may be reviewed. Drawing heavily on Eviston, the Court stated that reversal of a non-prosecution decision is permissible even without new evidence, provided fair procedures are respected.

Key points of analysis:

• Fair Procedures: Unlike Eviston, no “exacerbated layer” of stress was demonstrated. The Appellant’s affidavit cited general stress and inconvenience but lacked evidence of exceptional anxiety attributable to the reversal.
• Delay: The period of alleged delay was partly attributable to the Appellant’s imprisonment and residence abroad. Remaining administrative delay, while “significant,” was not shown to prejudice the defence. Loss of photographs was speculative and unlinked to demonstrable disadvantage.
• Review Power: The Respondent lawfully reviewed and reversed his decision after representations from the victim’s family; no mala fides or improper motive was alleged or proven.
• Judicial Deference: Consistent with State (McCormack) v Curran, absent evidence of mala fides or abdication of function, courts should not intervene.

The Court therefore found no breach of constitutional fair procedures and no evidential prejudice sufficient to prohibit the trial.

Holding and Implications

Appeal dismissed; the prosecution may proceed.

Direct effect: the Appellant’s trial will continue in the ordinary course, subject to the trial judge’s ongoing duty to ensure fairness and consider any sentencing implications if convicted. Broader implications: the decision re-affirms that, while the Director may revisit non-prosecution decisions, prohibition will issue only where concrete evidence shows that such a reversal, combined with delay or stress, has rendered a trial unfair.