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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Mulhern, Re Judicial Review  NIQB 33 (10 April 2018)
Cite as:  NIQB 33
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Neutral Citation No:  NIQB 33
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
KEEGAN J (delivering the judgment of the court)
(a) An order of certiorari to bring up and quash the decision of the Director of Public Prosecutions not to prosecute Freddie Scappaticci for an offence of perjury relating to the judicial review claim he issued in 2003;
(b) An order of mandamus to compel the Director of Public Prosecutions to take a fresh, lawful decision on whether to prosecute Freddie Scappaticci for an offence of perjury relating to the judicial review claim he issued in 2003;
(c) A declaration that the said on-going failure is unlawful.
"I know who was responsible for my son's death: it has been widely reported that he was killed by the so-called 'nutting squad' a group within the Provisional IRA which was responsible for internal discipline.
At the time of my son's murder, Freddie Scappaticci was not only a senior member of the Provisional IRA, he was also an agent of the British Army, known as agent Stakeknife."
"The Director has asked me to reply to your letter of 16 May 2017.
You will appreciate that the PPS is unable to make any comment on the suggestion in your letter as to the identity of the agent codenamed Stakeknife.
It is correct however that an individual was reported to the PPS in 2006 for the alleged offence of perjury during court proceedings in 2003 involving the individual referred to in your letter. While it was considered, on the evidence, that perjury was committed, the view was taken that the individual concerned had a viable defence of necessity and a no prosecution decision issued. These matters are now the subject of investigation by Operation Kenova and it would be inappropriate to comment further."
"The Director of Public Prosecutions Barra McGrory QC has announced today (Wednesday 22 October 2015) that he has requested that the Chief Constable investigate a range of offences which relate to the activities of an individual who is commonly known under the codename Stakeknife.
The Director of Public Prosecutions has also carried out a review of relevant papers and information within the PPS and has identified one case where he now considers there is sufficient basis to review a prosecutorial decision. This relates to a case involving an allegation of perjury in 2003. The Director explains:
'I have serious concerns in relation to this decision. Having reviewed all of the available evidence I consider that the original decision did not take into account relevant considerations and also took into account irrelevant factors. I have concluded that the original decision was not within the range of decisions that could reasonably be taken in the circumstances. This decision has been set aside. In accordance with our code for prosecutors, I have asked the Chief Constable to provide further material so that the matter may be reconsidered'."
"While adopting a position of neutrality in the judicial review, I would offer the following two observations in the hope that they may assist the parties and the court:
(1) As set out in Parts 3 to 4 of my above mentioned affidavit, Operation Kenova will ultimately report to PSNI on those matters within our terms of reference and PSNI will in turn report to PPSNI under Section 35(5) of the Justice (Northern Ireland) Act 2002. Accordingly, Operation Kenova will independently investigate and report on the perjury allegations at the heart of this judicial review unless and until PSNI/PPSNI decide otherwise: if a related prosecution were to be brought at this stage, thought may therefore have to be given to the implications for Operation Kenova's scope in terms of reference.
(2) From a policing and investigatory perspective, best practice would dictate that PPSNI simultaneously considers as many interconnected matters as possible in the light of the widest possible range of evidence and potential charges. If the court were to find that PPSNI should take a prosecution decision in relation to the perjury allegations now, before we have investigated and reported on them, PPSNI could only do this by reference to the evidence currently available."
"4.1 Operation Kenova's terms of reference are underpinned by four requests made by the Northern Ireland DPP to the Chief Constable of PSNI under Section 35(5) of the Justice (Northern Ireland) Act 2002 and one open PSNI murder file, which have all been transferred to my team for action under Section 98 of the Police Act 1998: request 4 under this section is as follows:
Request 4 – 22 October 2015 – perjury
A Section 35(5) request was also made in relation to a case involving related allegations of perjury, perverting the course of justice and misconduct in public office in 2003.
5 – Transferred murder file – Mulhern
The PSNI Serious Crime Branch re-opened the investigation into the 1993 murder of Joseph Mulhern in 2011 and forwarded an interim report to the Northern Ireland DPP in January 2016. This case was also transferred to Operation Kenova for continued investigation together with the Section 35(5) requests."
"My position is and always has been as follows, including in all discussions with stakeholders (see para 3.8 of my above mentioned affidavit at Exhibit DM1, Tab 2 at Bundle Part II, page 82):
(a) My absolute priority is the fulfilment of Operation Kenova's terms of reference in the interests of the victims, their families, the wider public and the administration of justice and as a means of helping discharge the State's investigative obligations under Article 2 of the ECHR;
(b) Operation Kenova represents the best and most reliable means of getting to the truth and the matters within our terms of reference, including the perjury allegation; and
(c) We have no wish to impede or inhibit the pursuit by families or victims of access to justice in the civil courts and wish to retain a position of absolute neutrality in relation to all civil claims."
Arguments of the parties
(i) Breach of the prosecutorial code.
(ii) Lack of consultation with victims.
(iii) Lack of reasons which is particularly stark given the public interest.
(iv) Delay which is inimical to the public interest.
" Where the function of a public body concerns decisions about commencing or permitting legal proceedings, grounds for judicial review are applicable in a restricted way. There is now a well trammelled line of authority to this effect in the context of PPS decisions to prosecute or not to prosecute, the most recent authority in Northern Ireland being Re Mooney's (Christopher) Application  NICA 48 which reviewed all of the salient case law.
 Hence for the purposes of the instant case, the relevant principles can be stated as follows:
(1) Absent dishonesty or mala fides or in highly exceptional circumstances, the decision of the PPS to consent to prosecution is not amenable to judicial review: see R v DPP ex p Kebilene  2 AC 326 at 369H-371G: R (On the Application of Corner House Research and Others) v Director of Serious Fraud Office  UKHL 60.
(2) A decision not to prosecute is reviewable but will be interfered with sparingly, namely for unlawful policy, failure to act in accordance with an established policy or perversity: see R v DPP ex p C  1 Cr. App. R. 136.
(3) The threshold for the review of decisions not to prosecute may be somewhat lower than that set for decisions to prosecute because judicial review is the only means by which the citizen can seek redress against the decision not to prosecute: see McCabe  NIQB 58 at [19-21] and R v Director of PP ex parte Manning  QB 330 at para .
(4) Essentially there are three reasons for these principles. First, because the power in question is extended to the officer identified and to no one else. Secondly, the polycentric character of official decision-making and public interest considerations are not susceptible to judicial review because it is within neither the constitutional function nor practical competence of the courts to assess their merits. Thirdly, the powers are conferred in very broad and unprescriptive terms (see Mooney's case at paragraph )."
"4.1 Prosecutions are initiated or continued by the PPS only where it is satisfied that the test for prosecution is met. The test for prosecution is met if:
(1) The evidence which can be adduced in court is sufficient to provide a reasonable prospect of conviction – the evidential test; and
(2) The prosecution is required in the public interest – the public interest test."
Paragraph 4.2 also states:
"This is a two stage test and each stage of the test must be considered separately and passed before a decision to prosecute can be taken. The evidential test must be passed first before the public interest test is considered. If this is also passed, the test for prosecution is met. The tests are set out in detail at paragraph 4.7 et seq."
(i) Operation Kenova was an important publicly recognised step taken to deal with these very serious allegations of criminal behaviour. It seems to us that the thrust of this investigation cannot be underestimated. We borrow from the words of Chief Constable Boutcher who is tasked with this investigation. He says in his correspondence that Operation Kenova represents "the best and most reliable means of getting to the truth about the matters within our terms of reference, including the perjury allegations." The perjury allegations have been referred under the Justice Act. Insofar as the public interest is engaged we observe that this investigation is a critical step in the search for the truth in relation to the activities of agent Stakeknife.
(ii) We do not consider that the actions of the PPS are in breach of the prosecutorial code. In fact we consider that it would arguably be a breach of the code to pre-empt the outcome of Operation Kenova and make a decision without being fully informed whilst that investigative work is on-going. The operative part of the Code that is most relevant to this decision-making is paragraph 4.4 which reads as follows:
"In the vast majority of cases, prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has been reviewed. If prosecutors do not have sufficient information to take such a decision, they should identify evidential weaknesses and request that the investigator, where possible, provide additional evidence to enable a fully informed decision as to prosecution to be taken."
We also have looked at the corollary of 4.4 which is 4.6 of the code which states as follows:
"There may be exceptional cases where it is clear, prior to the completion of an investigation, that the public interest will not require a prosecution, in which case a public prosecutor may decide that the test for prosecution will not be met and the case should not proceed further. Prosecutors should only take such a decision when they are satisfied that the broad extent of the criminality has been determined and that they are able to make a fully informed assessment of the public interest. Any such decision must be approved by the relevant assistant director."
(iii) We consider that the approach of the DPP does not offend the public interest. There has been transparency in relation to this issue illustrated by the press statement released in October 2015 by the DPP in relation to the perjury prosecution process and by the public pronouncement of Operation Kenova. We consider that this open approach is particularly important to maintain public confidence. In our view it is significant that an outside police force was brought in to deal with the investigation. The persons affected by the investigation have also been directly engaged with Operation Kenova as confirmed by the applicant.
(iv) We do not consider that any reasons challenge is made out in this case. The decision-making letter sent by the proposed respondent referred to the core issue which is the on-going Operation Kenova investigation and as such we consider that there is no basis for any challenge on this ground.