The High Court of Ireland Endorses the Valuable Right of Private Prosecution
In the recent case of Kelly & Anor v. District Court Judge Ryan IEHC 321, the High Court of Ireland confirmed the right of individuals to bring private prosecutions. The Court permitted a private prosecution to continue against bank officials.
Although the decision is not binding on English Courts, the judicial comment in support of private prosecutions, to serve as a constitutional check to the inherent risk or lapse of oversight on the part of the Public Prosecutor, is commended.
A hotelier, Mr Halpin, owed substantial sums to Irish Bank Resolution Corporation (IBRC) Ltd. Mr Halpin’s complaint was that immediately prior to the appointment of the receiver by IBRC, he was asked to attend a meeting. Mr Halpin attended this meeting and left with the impression that there would be a second meeting with further proposals. Unbeknown to Mr Halpin a decision had already been taken to appoint a receiver. Mr Halpin alleged offences contrary to Section 6 of the Criminal Justice (Theft and Fraud Offences) Act 1999. The defendants contended that the right of private prosecutions in respect of indictable offences had been abolished by the 1999 Act.
Hogan J held that there was no doubt that at common law any individual has the right to initiate a criminal prosecution. He reasoned that the special definition of the term prosecutor in the Criminal Justice Act (Theft and Fraud Offences) 1999 gave a clear signal that the Irish Parliament had consciously decided not to abolish the system of private prosecution, even for indictable offences. As the Supreme Court stated in The State (Ennis) v. Farrell  I.R. 107, the court “should require clear language to abolish the valuable right of private prosecution”, and that clear words are required to displace well established common law rights.
In Ennis, O’Dalaigh C.J observed:
“That a private prosecutor who had adduced sufficient evidence to effect a return for trial [following a preliminary examination] might, as a general rule, rest assured that the Attorney General would thereafter carry the case to trial before a judge.”
Counsel for the Applicants submitted that the changes made by the Criminal Justice Act in abolishing the preliminary examination procedure must be taken to have abolished the right to of private prosecution. Hogan J rejected the argument, stating that the ‘existence of a private prosecutor still acts as an external check against the risk of a rare lapse or oversight on the part of the [Director of Public Prosecutions].
Applicant’s right to be heard before the issuing of summonses
The applicants further contended that they were entitled to be heard before information was laid before the District Court. Whilst sympathetic to this contention Hogan J stated that , given the sheer volume of prosecutions, the administration of justice would simply grind to a halt if accused persons could claim a right to be heard before a summons was issued.
Whether the prosecution constitutes an abuse of process by reason of improper motive
It was reasoned that the mere fact that a private prosecutor nurses a private grievance regarding his treatment, does not in itself mean that the prosecution is tainted by improper motive. As Lord Justice Latham observed in Dacre v City of Westminster Magistrates Court  EWHC 1667, ‘It is inevitable that many private prosecutions will be brought with mixed motives.’
Referring to the leading English authority on abuse of process arguments in private prosecutions, ‘R v Bow Street Stipendiary Magistrates, ex P. South Coast Shipping co. Ltd (1993) Cr. App. Rep. 405, the High Court rejected the argument that a private prosecution was tainted by the presence of mixed motives. Lloyd LJ in South Coast Shipping argued that, even if the private prosecutors motives were mixed, the Court ‘should be slow to halt a prosecution unless the conduct of the prosecution is truly oppressive ’. Applying that principle to the facts in the instance case, Hogan J reasoned that merely because the private prosecutor feels very strongly about the conduct of the defendant that it can not accordingly be said that this in itself disables him from bringing the prosecution.
Issuing the summons
Counsel for the applicant also contended that the decision to issue the summons was unreasonable and should thus be quashed by the High Court. Rejecting this argument, Hogan J stated:
“Bearing in mind that the issuing of a summons is simply a procedural step which invites a response from the accused, it seems to me that it would require wholly exceptional circumstances before this Court could properly intervene to quash the decision to issue the summons.”
1. The right of a private prosecution has not been directly or indirectly affected by the abolition of the preliminary examination procedure.
2. The right of private prosecution acts as an external check against the risk of a rare lapse or oversight on the part of the Public Prosecutor.
3. Despite the evidence in the case appearing to be tenuous – even trivial – the unprecedented step of quashing a summons was not justified and would represent a far-reaching intrusion into the exclusive domain of the District Court.