THE HIGH COURT
		1994 No.  7734P
BETWEEN
LIAM LANDERS, SEAN WALSH AND PATRICK HANNIGAN
		PLAINTIFFS
AND
THE GARDA SIOCHANA COMPLAINTS BOARD, THE GARDA SIOCHANA COMPLAINTS TRIBUNAL, THE DIRECTOR OF PUBLIC PROSECUTIONS, SEAN D. HURLEY, IRELAND AND THE ATTORNEY GENERAL
		DEFENDANTS

JUDGMENT of Mr. Justice Kelly delivered the 7th day of March, 1997.

	The Director of Public Prosecutions applies to have his name struck from the title of these proceedings.  He also seeks to have the claims made against him struck out.
	Insofar as the first relief is concerned, he relies upon what he contends are procedural irregularities in the way in which he came to be joined in these proceedings.
	Insofar as the second claim is concerned, he relies upon the jurisdiction of this Court conferred by Order 19 Rules 27 and 28 of the Rules of the Superior Courts and the inherent jurisdiction of the Court. 
	In order to understand the basis of the application, it is necessary to refer in some detail to the Statement of Claim which has been delivered in the proceedings and to the background which gave rise to them.

THE STATEMENT OF CLAIM AND ITS BACKGROUND
	Each of the Plaintiffs are members of the Garda Siochana.  The Statement of Claim in this case was delivered on the 25th January, 1996.  Insofar as it is relevant, it alleges as follows:-

	"5.   On Saturday night/Sunday morning of the 12th June, 1988 an incident took place on the main Finglas road, Finglas in the City of Dublin on the forecourt of Finglas Garda Station, Finglas in the City of Dublin.  It is alleged that one Derek Fairbrother was assaulted severely and in an unprovoked way by the Plaintiffs.  There is a complete conflict as to what actually happened on the occasion in question and as to why it happened.  However, if the allegation by the said Derek Fairbrother was to be proven, then the Plaintiffs were guilty of a serious assault on the said Derek Fairbrother.

	6.   On or about the 15th day of June 1988, the Solicitor on behalf of the said Derek Fairbrother complained to Superintendent Sweeney that 'the said Derek Fairbrother was wrongfully arrested and imprisoned by the Gardai concerned and in the course of such arrest and imprisonment was seriously assaulted, as a result of which, he received very serious and severe injuries inflicted by a member or members of the Garda Siochana.  The injuries consisted of severe cuts and bruises as a result of which he lost consciousness and after a time, was conveyed to the Mater Hospital where he was detained'.  This complaint formed the basis of a complaint to the Garda Siochana Complaints Board.

	7.   On or about the 22nd June, 1988 the Fourth named Defendant wrote to the Assistant Commissioner of the Gardai informing him by letter as follows:

		'I am of opinion that the complaint is admissible under Section 4(3)(a)(iii) of the Garda Siochana (Complaints) Act, 1986 in that the conduct complained of would be conduct specified in the Fourth Schedule to the Act.

		I should be obliged if you would kindly formally appoint an investigating officer to investigate the complaint under Section 6 of the Act and request him to contact this office as soon as possible'.

	8.   A letter in similar form was sent by the Fourth named Defendant to the Solicitors for the said complainant, Derek Fairbrother.

	9.   On or about  the 25th day of June 1988 notification under Section 4(4) of the 1986 Act was served on the Third named Plaintiff, indicating that a complaint was being investigated, namely:- 

		'That Derek Fairbrother of Kilcoscan, Mays Cross, The Ward, Co. Dublin alleges that on the 12th June, 1988 he was wrongfully arrested and imprisoned by the Gardai and in the course of such arrest and imprisonment was seriously assaulted, as a result of which, he received very serious and severe injuries inflicted by a number of members of An Garda Siochana'.

	10.   On the 22nd June, 1988 a Superintendent Patrick E.S. Jordan was appointed Investigating Officer under Section 6 of the 1986 Garda Siochana (Complaints) Act to investigate the said complaint.

	11.   On or about the 15th day of August 1988 the First named Defendant considered the matter at their meeting and on that date took a decision that the Third named Defendant should reconsider the matter.  Some time prior to the said date, at a time unknown to the Plaintiffs, the Third named Defendant considered the complaint and indicated to the First and Fourth named Defendants that he was not intending to prosecute the members concerned.  However, despite that, on the 16th August 1988, the First and Fourth named Defendants sent a further report and statements to the Third named Defendant for further consideration and on the 29th November, 1988 the Third named Defendant informed the First and Fourth named Defendants that he, the D.P.P., did not intend to institute proceedings in relation to the conduct alleged in the complaint.

	12.   Pursuant to the said letter on the 6th December, 1988 the Fourth named Defendant wrote to the Plaintiffs in the following terms:

		'The report of the Investigating Officer appointed to investigate the complaint has been considered carefully by the Board.  The Board is satisfied that the matter has been thoroughly investigated and being of opinion that the complaint is admissible and that the conduct alleged could constitute an offence on the part of the members concerned, referred the matter to the Director of Public Prosecutions who decided not to institute proceedings in relation to this case.

		The Board will give further consideration to the report of the Investigating Officer in accordance with the terms of the Garda Siochana (Complaints) Act, 1986 and I will be in touch with you again to inform you of any decisions which the Board may make in relation to this matter'.

	13.   A similar communication was sent to the solicitor for the complainant, Mr. Derek Fairbrother.

	14.   On or about the 12th December, 1988 the First named Defendant further considered the complaint at a meeting on the said date.  It was decided at that meeting that as civil proceedings had been instituted in relation to the incident which gave rise to the complaint and the First named Defendant considered it likely that the Court would determine an issue or issues relevant to or concerning the conduct alleged in the complaint, that any further action by the Board in relation to the complaint would be postponed until the civil proceedings had been finally determined.  The Plaintiffs were not parties to the said civil proceedings.

	15.   No further step was taken by the First named Defendant until the 29th October, 1992 when a Superintendent John McLoughlin was appointed Investigating Officer by Chief Superintendent Walsh of B Branch, Garda Headquarters to continue the investigation started by Superintendent Jordan in 1988.

	The civil case concluded on the 20th November, 1992.

	16.   The complaint was again considered by the First named Defendant on the 14th February, 1994 when the First named Defendant made the decision to again refer the matter to the Third named Defendant and on the 16th February, 1994, documents were re-sent to the Director of Public Prosecutions, the Third named Defendant and on the 7th April, 1994 the Third named Defendant formed the view 'the additional material that accompanied the letter has now been considered here.  It has been concluded that there is not the basis therein either for an alteration in the directions from this office that have already issued or for new directions to issue'.

	17.   On the 20th May, 1994 the Plaintiffs were informed by the First named Defendant that 

		'The Board is satisfied that the matter has been thoroughly investigated and that having considered all reports is of the opinion that a breach of discipline on your part other than a breach of a minor nature appropriate to be dealt with informally by the Commissioner may be disclosed in this case and accordingly the Board is required to refer the matter to a Tribunal under Section 7(5) of the Act'.
	This was the first time the First named Defendant formed an opinion that a breach of discipline as opposed to an offence had possibly occurred on the part of the Plaintiffs.

	18.   The injuries sustained by Derek Fairbrother were such that he was subsequently made a Ward of Court.

	19.   The Fourth named Defendant proceeded to refer the complaint to the Second named Defendant which purported to proceed with the hearing of the complaint pursuant to the provisions of the Garda Siochana (Complaints) Act of 1986 and despite objections made by and on behalf of the Plaintiffs on a number of grounds, including the constitutionality of certain provisions of the Garda Siochana (Complaints) Act as regards the constitution and regulation of the First and Second named Defendants and the Third named Defendant.

	By Order dated the 9th day of December 1994 the High Court gave leave to apply for Judicial Review by way of plenary proceedings".

The Statement of Claim then proceeds to set out the grounds upon which leave to apply for Judicial Review had been granted by the High Court on the 9th December, 1994.  It is pertinent to point out at this stage that the application for leave to apply for Judicial Review was brought by the present Plaintiffs but was not directed against either the Director of Public Prosecutions or Mr. Sean D. Hurley.  I will return to this topic in due course.  
	Having set forth the grounds upon which the High Court gave leave to apply for Judicial Review, the Statement of Claim immediately proceeds to the prayer.  It is only necessary to set forth the reliefs which are sought against the Third named Defendant for the purposes of this application.  They are:-

	"(5)   A declaration that the Third named Defendant acted ultra vires and in breach of the Constitution in failing to refer a complaint made in or about the 15th day of June 1988 for criminal trial.

	(6)   A declaration that in failing to refer a complaint made in or about the 15th day of June 1988 for criminal trial and subsequently by referring the said complaint to the Second named Defendant, the First, Third, Fourth, Fifth and Sixth named Defendants failed to vindicate the constitutional rights of the Plaintiffs".

	In short the Plaintiffs make a complaint that the Director of Public Prosecutions acted ultra vires and in an unconstitutional way by not prosecuting them on foot of the complaint which was made against them.
	I turn now to consider the contentions made by the Director of Public Prosecutions on this application.

THE PROCEDURAL OBJECTION
		On the 9th December, 1994 application was made to this Court (Geoghegan J.) on behalf of the Plaintiffs in this action.  The application was for leave to commence Judicial Review proceedings against the Garda Siochana Complaints Board, the Garda Siochana Complaints Tribunal, Ireland and the Attorney General.  The Order sought was granted.  The Plaintiffs were directed to seek Judicial Review by plenary summons and were obliged to effect service of that summons together with the other documents specified in the Order within a period of 28 days.  As I have already pointed out, leave was not sought or obtained to seek Orders by way of Judicial Review against the Director of Public Prosecutions or Sean D. Hurley.
	On foot of the leave given by Geoghegan J., one plenary summons and one summons only was issued.  It is the summons in suit.  On receipt of this summons the Chief State Solicitor, by letter dated the 13th March, 1995 addressed to the Applicants' Solicitors, wrote as follows:-

	"I acknowledge receipt of papers herein.  I refer you to plenary summons which was issued on the same date as leave was sought.  The summons recites nineteen reliefs whereas leave was granted in respect of nine reliefs by Geoghegan J.  Furthermore, the Order of Geoghegan J. does not refer to the D.P.P. as Notice Party whereas he is cited in the plenary summons.

	It is apparent therefore that the summons is not issued in accordance with the leave granted.  I await hearing from you and will not file an appearance until then".

The response to this letter was dated the 27th March, 1995 and was as follows:-

	"Thank you for yours the 13th instant which was only received the 21st instant.

	The reliefs sought in the plenary summons are in addition to the reliefs granted by Mr. Justice Geoghegan in his Order of the 9th December, 1994.  Furthermore, the additional reliefs are sought against additional defendants, namely, the Director of Public Prosecutions and Sean D. Hurley".

It is said by the Director of Public Prosecutions that these proceedings arise out of matters the subject of the application for Judicial Review which resulted in leave being granted to named specified respondents and on specified grounds.  However, the plenary proceedings when instituted named additional defendants of whom the Director of Public Prosecutions is one and sought additional reliefs in respect of which leave had not been granted.
	In response there has been filed an affidavit sworn by a partner in the Applicants' Solicitors firm.  Insofar as it is relevant, that affidavit states as follows:-

	"3.  I say that at the time of the making of the application for leave to apply for Judicial Review, I had on Counsel's advice prepared a plenary summons for issue subject to judicial leave in respect of the Judicial Review proceedings.   I say that when Mr. Justice Geoghegan indicated a willingness to grant leave to apply by way of Judicial Review Counsel applied for leave to proceed by way of plenary hearing.  The plenary summons prepared by Counsel was placed before Mr. Justice Geoghegan and was discussed and the said plenary summons was issued immediately following leave being granted on the 9th December, 1994 i.e. the same day".

The affidavit then goes on to aver as to the case which is to be made against the Director of Public Prosecutions and touches upon certain of the legal arguments which the Plaintiffs propose to make at trial.  The affidavit then goes on  to set out the various steps that have been taken in these proceedings by reference in particular to the dates upon which they occurred.
	The paragraph from the affidavit which I have just quoted is the only explanation which is offered as to why this extraordinary and, in my view, undesirable, procedure was followed in the present case.  I do not understand why when an application for leave to apply for Judicial Review was made, neither the Director of Public Prosecutions nor Mr. Hurley were named as respondents.  The Plaintiffs' legal advisers clearly envisaged suing them and produced a draft plenary summons naming those persons as Defendants.  By adopting the course which they did, the Plaintiffs avoided the necessity to bring themselves within the provisions of Order 84 of the Rules of the Superior Courts.  By not including these persons as respondents to the ex parte application for leave to apply for Judicial Review, they avoided having to demonstrate to the Court that they had satisfied the necessary standard of proof for such leave to be granted as far as the D.P.P. and Mr. Hurley were concerned.   In addition, they also avoided having to come within the limitation period provided for in Order 84 Rule 21.  The application for Judicial Review was made on the 9th December, 1994 and complaint is made in respect of a decision of the Director of Public Prosecutions of the 15th June, 1988.  Order 84 Rule 21 requires that an application for leave to apply for Judicial Review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period.  An extension of time of over six years would have been required in this case.  The necessity to obtain such an extension was avoided by the Plaintiffs adopting the course they did. Declaratory relief is available as a Judicial Review remedy and, in my view, it would have been preferable if the application of the 9th December, 1994 had included as named respondents all of the persons who are now named as Defendants in this action and the basis for the relief being sought against them.
	However, the question which I have to decide on this application is whether this departure from a procedure which I consider desirable has fatal consequences for the Plaintiffs' claim against the Director of Public Prosecutions.
	If the Director of Public Prosecutions is to succeed on this leg of his claim, he has, in my view, in effect to demonstrate to my satisfaction that the procedure adopted in this case amounted to an abuse of the process of the Court.  He would be well on the way to so doing if he could show that the procedures prescribed under Order 84 of the Rules of the Superior Courts are mandatory and exclude, in the cases coming within their purview, the adoption of any other procedure, e.g. the issue of a plenary summons seeking declaratory relief.
	This topic has already been considered by this Court in the case of O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301.  In the course of his judgment Costello J. (as he then was) considered the relevant English statutory provisions and the case law which had developed in relation to them culminating in the decision of the House of Lords in O'Reilly v. Mackman [1983] 2 A.C. 237.
	Costello J. said:-
	
	"Firstly (sic), as a matter of construction, I cannot construe the new rules as meaning that in matters of public law Order 84 provides an exclusive remedy in cases where an aggrieved person wishes to obtain a declaratory order and that such a person abuses the Court's processes by applying for such an order by plenary action.  Secondly, I do not think that the Court is at liberty to apply policy considerations and conclude that the public interest requires that the Court should construe its jurisdiction granted by the new rules in the restrictive way suggested, 
	(a)	because the jurisdiction it is exercising is one conferred by statute (the 1867 Act) and it is not for the Courts to decide that as a matter of public policy litigants who ask the Court to exercise this discretion abuse the Court's processes, and

	(b)	because it is not necessary to call in aid the doctrine of public policy to avoid the mischief which would otherwise result.

	I should develop this latter point a little more fully.  Order 84 contains significant safeguards in favour of public authorities.  Leave to bring an application for judicial review must first be obtained (r. 20(1));  leave will not be granted unless the applicant can show sufficient interest (r. 20(4));  the application must be brought promptly and in any event within three months, subject to a power to have this time extended (r. 21(1)).

	But, as Ackner L.J. pointed out in O'Reilly (at p. 265) on a motion to try a preliminary issue in a plenary action the Court could determine whether an application was so frivolous or vexatious or so devoid of merit that leave to issue it under Order 84 Rule 20(1) would never have been granted and so stay the plenary action, or it could conclude on such a motion that the plaintiff had no standing and dismiss it as it would have done under Rule 20 (4) had an application for judicial review been brought.

	A declaratory order is a discretionary order arising from the wording of statute which conferred jurisdiction on the Courts to make such orders (see Wade, Administrative Law 5th Edition, page 523) and it is well established that a plaintiff's delay in instituting plenary proceedings may, in the opinion of the Court, disentitle the plaintiff to relief.  It seems to me that in considering the effects of delay in a plenary action there are now persuasive reasons for adopting the principles enshrined in Order 84 Rule 21 relating to delay in applications for judicial review, so that if the plenary action is not brought within three months from the date on which the cause of action arose, the Court would normally refuse relief unless it is satisfied that had the claim been brought under Order 84 time would have been extended.  The Rules Committee considered that there were good reasons why public authorities should be protected in the manner afforded by Order 84 Rule 21 when claims for declaratory relief were made in applications for judicial review and I think exactly the same considerations apply when the same form of relief is sought in a plenary action.  Furthermore, it is not desirable that the form of action should determine the relief to be granted and this might well be the result in a significant number of cases if one set of principles on the question of delay was applied in applications for judicial review and another in plenary actions claiming the same remedy.  And in plenary actions the effect of delay can, in many cases, be determined on the trial of a preliminary issue and as speedily as if the issue fell to be determined in an application for judicial review.

	For these reasons it seems to be that the apprehended use of plenary actions as a device to defeat the protections given by Order 84 is not a real danger and does not justify the Court in concluding that proceedings by plenary action for declaratory relief against public authorities must be an abuse of process". 

	Mr. Ó Caoimh, on behalf of the Director of Public Prosecutions, accepted this decision as representing the law in this jurisdiction.  It appears to me, that such being the case, his arguments on this procedural issue must be rejected.  Desirable as it might have been to have included the Director of Public Prosecutions as a respondent in the application for leave to apply for Judicial Review, the fact that that was not done is not fatal.  There is still an entitlement to institute proceedings by way of plenary summons seeking declaratory relief.  This entitlement was availed of by the Plaintiffs.  The fact that the one summons was issued, both in respect of this claim against the Director of Public Prosecutions and the other claims in respect of which leave was given, was clearly more efficient from an administrative point of view since all of the claims are now brought in the same suit.  It follows, therefore, that the procedural argument of the Director of Public Prosecutions fails.  I refuse the relief sought.

THE APPLICATION TO STRIKE OUT IN LIMINE - PRINCIPLES APPLICABLE
	On this aspect of the matter the Director relies, not merely upon the provisions of the Rules of Court which I have already mentioned, but also upon the inherent jurisdiction of the Court.
	Order 19 Rule 27 reads as follows:-

	"The Court may at any stage of the proceedings order to be struck out or amended any matter in any indorsement or pleading which may be unnecessary or scandalous, or which may tend to prejudice, embarrass or delay the fair trial of the action;  and may in any such case, if it shall think fit, order the costs of the application to be paid as between solicitor and client".

	Rule 28 reads:-

	"The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence to be shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just".

	Apart from these two rules, the Court has an inherent jurisdiction to stay proceedings that are frivolous or vexatious or propound a claim which must fail.
	The principles upon which the Court exercises its jurisdiction have been considered in quite a number of cases.  In Barry v. Buckley [1981] I.R. 306, Costello J. (as he then was) said at page 308:-

	"The principles on which the Court exercises this jurisdiction are well established.  Basically, its jurisdiction exists to ensure that an abuse of the process of the Courts does not take place.  So, if the proceedings are frivolous or vexatious they will be stayed.  They will also be stayed if it is clear that the plaintiff's claim must fail;  per Buckley L.J. in Goodson v. Grierson (1908)      1 KB 761 at 765.

	The jurisdiction should be exercised sparingly and only in clear cases;  but it is one which enables the Court to avoid injustice, particularly in cases whose outcome depends on the interpretation of a contract or agreed correspondence".

	In Sun  Fat Chan v. Osseous Limited [1992] 1 I.R. 425 at 428 McCarthy J. speaking for the Supreme Court said:-

	"Generally, the High Court should be slow to entertain an application of this kind and grant the relief sought.  Experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier stages in the proceedings;  often times it may appear that the facts are clear and established but the trial itself will disclose a different picture.  With that qualification, however, I recognise the enforcement of a jurisdiction of this kind as a healthy development in our jurisprudence and one not to be disowned for its novelty though there may be a certain sense of disquiet at its rigour".

	This jurisdiction was again considered by Costello J. in D.K. v. A.K. [1993] I.L.R.M. 710 where he repeated the principles enunciated by himself in Barry v. Buckley.  Having expressed the view that the plaintiff's claims were neither frivolous nor vexatious, he said at page 713:-

	"What I am required to consider therefore is whether any of the claims against all or any of the defendants is so clearly unsustainable that I should strike it out".

	His approach to this jurisdiction was considered in the Supreme Court in O'Neill v. Ryan [1993] I.L.R.M. 557.  Blayney J. at 561 expressly approved the approach of Costello J. in D.K. v. A.K. as being correct.  
	In approaching this application, I must assume that every fact pleaded by the Plaintiffs against the Director of Public Prosecutions is correct and can be proved at trial.
	In addition I must bear in mind the observation of McCarthy J. in Sun Fat Chan's case at 428 where he said:-

	"By way of qualification of the jurisdiction to dismiss an action at the statement of claim stage, I incline to the view that if the statement of claim admits of an amendment which might, so to speak, save it and the action founded on it, then the action should not be dismissed".

	No application for amendment of the Statement of Claim has been made in this case.
	Finally, when the inherent jurisdiction is involved, the Court is entitled to consider affidavit evidence and is not confined to a consideration of the pleadings alone (see Barry v. Buckley supra).

THE APPLICATION TO STRIKE OUT IN LIMINE - APPLICATION OF THE PRINCIPLES
	It is clear from the relevant portions of the prayer of the Statement of Claim, which I have already quoted in this judgment, that the Plaintiffs seek, in effect, to review the decision of the Director of Public Prosecutions not to prosecute them.  From the Statement of Claim and the affidavit evidence which was utilised on the application to Geoghegan J. and which was referred to without objection in the present case, it is clear that the papers in the matter were submitted to the Director of Public Prosecutions on three occasions.  The first was at a time unknown to the Plaintiffs and is referred to at paragraph 11 of the Statement of Claim.  The second was following the referral  of the matter back to the Director by the first Defendant.  The third was as a result of the referral on the 14th February, 1994 by the First named Defendant.  On each occasion the Director of Public Prosecutions decided not to prosecute the Plaintiffs.   The prayer in the Statement of Claim seeks relief only in respect of the D.P.P.'s decision of 15 August, 1988 but I will assume that all three refusals are sought to be impugned.  
         	Mr McGonigal  conceded that a declaration of the type sought at paragraphs 5 and 6 of the prayer of the Statement of Claim is no different, in effect, to an Order of Certiorari in respect of the decisions which are questioned.
	The ability of the Courts to review decisions made by the Director of Public Prosecutions in the conduct of his statutory obligation under the Prosecution of Offences Act, 1974 has been the subject of judicial decision on more than one occasion.  In The State (McCormack) v. Curran [1987] I.L.R.M. 225, the Supreme Court had to consider whether decisions of the Director of Public Prosecutions are reviewable at all by the Courts.  In the High Court Barr J. had held that the function of the Director of Public Prosecutions in deciding whether or not to prosecute an individual for the alleged commission of a criminal offence was an executive one and was not reviewable by the Courts because it would interfere with his independence.  On appeal, the Supreme Court held that that was not so.  In the course of his judgment Finlay C.J. at 237 said:-

	"In regard to the D.P.P. I reject also the submission that he has only got a discretion as to whether to prosecute or not to prosecute in any particular case related exclusively to the probative value of the evidence laid before him.  Again, I am satisfied that there are many other factors which may be appropriate and proper for him to take into consideration.  I do not consider that it would be wise or helpful to seek to list them in any exclusive way.  If, of course, it can be demonstrated that he reaches a decision mala fide or influenced by an improper motive or improper policy then his decision would be reviewable by a Court.  To that extent I reject the contention again made on behalf of this respondent that his decisions were not as a matter of public policy ever reviewable by a Court".

That dictum of Finlay C.J. makes it clear that decisions of the D.P.P. concerning the prosecution or non-prosecution of a person are subject to review by this Court.  However, such a review can only occur if it can be demonstrated that the D.P.P. reached a decision mala fide or was influenced by an improper motive or improper policy.
	In the course of his judgment in the same case, Walsh J. said:-

	"I concur in the opinion of the Chief Justice that the actions of the D.P.P. are not outside the scope of review by the Courts.  If he oversteps or attempts to overstep his function he can, if necessary, be restrained by injunction but I do not think any step he takes or any action or omission which is ultra vires can be of the nature of orders which attract certiorari.  A failure to perform his statutory duties could however be the subject of mandamus".

	Returning to the judgment of the Chief Justice he said:-

	"In the instant case, however, I am satisfied that no prima facie case of mala fides has been made out against either of the respondents with regard to this matter.  Secondly, I am satisfied that the facts appearing from the affidavit and documents do not exclude the reasonable possibility of a proper and valid decision by the D.P.P. not to prosecute the appellant within this jurisdiction and that that being so, he cannot be called upon to explain his decision or to give the reasons for it nor the sources of the information upon which it was based".

	In his judgment Walsh J. went on to say:-

	"There is evidence that the D.P.P. thought that it would be inappropriate to institute proceedings within this jurisdiction against the plaintiff as he so stated in a letter to the plaintiff's solicitor. ....  As the defendants have chosen not to offer any evidence in this case, the Court does not know what are the reasons which warranted the D.P.P.'s conclusion or in what respects it would be inappropriate to institute the proceedings. ....  There is nothing before this Court from which it could be reasonably inferred that the opinion was either perverse or inspired by improper motives. .....   There is no evidence in the present case from which it could reasonably be inferred that either the D.P.P. or Chief Superintendent Curran had abdicated their functions or had been improperly motivated".

	The matter was again considered by the Supreme Court in H. v. Director of Public Prosecutions [1994] 2 I.R. 589.  In that case O'Flaherty J. expressly approved of the decision of the Supreme Court in McCormack's case and at page 603 said this:-

	"However, it is clear from the decision in The State (McCormack) v. Curran that the discretion of the Director of Public Prosecutions is reviewable only in certain circumstances as set out by Finlay C.J. at page 237 of the report:-
	     
	     	'If, of course, it can be demonstrated that he reaches a decision mala fide or influenced by an improper motive or improper policy then his decision would be reviewable by a Court'.

	It would seem then that as the duty to given reasons stems from a need to facilitate full judicial review, the limited intervention available in the context of the decisions of the Director obviates the necessity to disclose reasons.

	In deciding whether to bring or not bring a prosecution, the Director is not settling any question or dispute or deciding rights or liabilities;  he is simply making a decision on whether it is appropriate to initiate a prosecution.  If he does, it is afterwards for the Courts to decide whether a conviction may be sustained.  The stance taken by the Director of Public Prosecutions is that he should not, in general, give reasons in any individual case as to why he had not brought a prosecution because if he does so in one case he must be expected to do so in all cases".

	In the same case Denham J. said:-

	"The Director of Public Prosecutions is independent in the performance of his functions;  see Section 2 subsection (5) Prosecution of Offences Act, 1974.  His discretionary power to prosecute was the subject of the decision of the Supreme Court in The State (McCormack) v. Curran".

Denham J. then goes on to quote the passages from the judgments of Finlay C.J. and Walsh J. which I have already quoted in this decision.  She then went on and said:-

	"Applying the test of the Chief Justice set out in The State (McCormack) v. Curran to the facts of this case, I am satisfied that no prima facie case of mala fides has been made out against the respondents.  The unsubstantiated statement of belief by the appellant not denied by the Director of Public Prosecutions does not of itself give rise to an adverse inference.  The facts of the case do not exclude the reasonable possibility of a proper and valid decision of the Director of Public Prosecutions not to prosecute the persons named by the appellant.  Consequently, the Director of Public Prosecutions cannot be called upon to explain his decision or to give the reasons for it nor the sources of the information upon which it is based.

	Applying the reasoning in the concurring judgment of Walsh J. in The State (McCormack) v. Curran it is clear that mandamus would not lie in this case as there is nothing before this Court from which it could be reasonably inferred that the Director of Public Prosecutions' decision was perverse, or inspired by improper motives or that he had abdicated his functions".

	These decisions which are of course binding upon me demonstrate

	(a)	that decisions of the Director of Public Prosecutions are reviewable by this Court,
	(b)	that such review may take place only if it is demonstrated that the Director, in making the decision, did so mala fide or was influenced by an improper motive or was influenced by an improper policy or had abdicated his functions.

		Such being the state of the law, I now turn to consider whether, assuming all of the facts alleged on affidavit and in the Statement of Claim are made out, the Plaintiffs place themselves within the scope of the jurisdiction of this Court to intervene and review the decision of the Director of Public Prosecutions.
		I have carefully considered the Statement of Claim delivered in the proceedings on the 25th January, 1996.  Nowhere in it is there any allegation of any wrongdoing at all made against the Director of Public Prosecutions still less a suggestion that he behaved mala fide or was influenced by an improper motive or was influenced by an improper policy or had abdicated his functions.  I have also considered the affidavit of Martin Moran, which was sworn on the 9th December, 1994 to ground the application seeking Judicial Review and to which reference was made in the course of the hearing before me.  Again in that affidavit I find not a word of criticism against the Director of Public Prosecutions.  This is probably not surprising given that he was not named as a respondent in that affidavit.  In the course of it, reference is made to the Director of Public Prosecutions but no complaint is made against him.  The final piece of evidence which was before me is the affidavit of Martin Moran, sworn on the 6th February, 1997.  Paragraph 4 thereof purports to set out the case which is made against the Director of Public Prosecutions.  It reads as follows:-

		"4.   I say and believe that the case against the Director of Public Prosecutions arises out of the following circumstances:-   A complaint alleging criminal behaviour (i.e. serious assault) was made against the Plaintiffs.  The behaviour complained of does not lend itself to any other interpretation but that if the behaviour took place a very serious crime was committed.  The Garda Siochana (Complaints) Act of 1986 requires the Garda Siochana Complaints Board to refer the results of its investigations to the Director of Public Prosecutions when it is of the opinion that a crime may have been committed.  The matter was referred to the Director of Public Prosecutions on at least three occasions and on at least three occasions the Director of Public Prosecutions refused to send the matter forward for trial.

		5.   The Garda Siochana (Complaints) Act of 1986 further sets out the procedure whereby complaints short of criminal behaviour but amounting to disciplinary behaviour might be dealt with by the Garda Siochana Complaints Tribunal and certain disciplinary sanctions are provided for in the Act.  However the complaints made against the Plaintiffs and the charges the subject of the hearing before the Garda Siochana Complaints Tribunal if proved, constitute criminal behaviour in respect of which the Plaintiffs if found guilty will be tried at present on a balance of proof which is a civil standard of proof and serious sanctions may be imposed.  Between the provisions of the Act, which is also complained of in these proceedings and the behaviour of the Director of Public Prosecutions, the Plaintiffs have been deprived of a public trial to vindicate their good names and reputations.

		6.   Only the Courts are charged in the Constitution with the administration of justice and the adjudication of alleged criminal behaviour.  By refusing the Plaintiffs their trial in public and possibly before a jury, while at the same time charging the Plaintiffs with criminal behaviour through the Garda Siochana Complaints Tribunal, the Plaintiffs have been deprived of their constitutional rights and therefore it is convenient that the case against the Director of Public Prosecutions in this regard should be heard at the same time as the Judicial Review Proceedings arising out of the provisions of the Garda Siochana (Complaints) Act of 1986".

		It does not appear to me that the deponent of this affidavit makes any allegation that the decision of the Director of Public Prosecutions not to prosecute the Plaintiffs was arrived at mala fide or was influenced by an improper motive or by an improper policy or that the Director had abdicated his functions.
		The affidavit appears to me to demonstrate a confusion in the mind of the deponent between the role of the Director of Public Prosecutions and that of the machinery set up under the provisions of the Garda Siochana (Complaints) Act of 1986.  Neither the Garda Complaints Board nor the Garda Complaints Tribunal have any part to play in the prosecution of criminal offences.  Neither have they any role in the administration of the criminal law.  These are matters for the Director of Public Prosecutions.  To say, therefore, as the deponent does at paragraph 6 of the affidavit, that "by refusing the Plaintiffs their trial in public and possibly before a jury ,while at the same time charging the Plaintiffs with criminal behaviour through the Garda Siochana Complaints Tribunal, the Plaintiffs had been deprived of their constitutional rights" is to confuse the situation.  True it is that the Director of Public Prosecutions has declined to prosecute the Plaintiffs.  But it is not the Director of Public Prosecutions who is "charging the Plaintiffs with criminal behaviour through the Garda Siochana Complaints Tribunal".  The Director of Public Prosecutions has decided not to charge the Plaintiffs with anything.  The matters which are before the Tribunal are not being dealt with as criminal offences since that Tribunal has no jurisdiction in relation to the criminal law of this State.
		I find nothing in the documents placed before me which demonstrates that the Plaintiffs have placed themselves within the scope of the jurisdiction of this Court to intervene with a view to reviewing the decision of the Director of Public Prosecutions.
		There remains to be dealt with the submissions which were made by Counsel on behalf of the Plaintiffs in this regard.  Mr. McGonigal says that serious allegations have been made against the Plaintiffs.  They were addressed to the Garda Complaints Board which in turn referred them to the Director of Public Prosecutions.  He declined to prosecute.  The papers were returned to the Director of Public Prosecutions on two further occasions and he maintained his refusal.  Nonetheless, the same factual matter is now being investigated pursuant to the machinery set up by the Garda Siochana (Complaints) Act of 1986.  Mr. McGonigal says that in these circumstances the Director of Public Prosecutions had no alternative but ought to have instigated prosecutions.  He says that this is particularly so in the case of members of the Garda force.  By failing to prosecute them, the Plaintiffs, he says, are being deprived of an entitlement to vindicate their good names in public.  Instead they will be dealt with by the machinery set up under the 1986 Act.  He says that the Director of Public Prosecutions must, when presented with a set of facts, give consideration to the possible vindication of a defendant's right to a good name as part and parcel of his consideration of whether or not to prosecute.  Indeed, Mr. McGonigal goes further.  He says that in the interest of justice and in the public interest, it would be open to the Director of Public Prosecutions to direct the prosecution of individuals even though he knew that an acquittal of such individuals was likely to be the result of such a prosecution.  He lays particular emphasis upon the position in society held by his clients and he says that because they are members of the Gardai and have a certain standing in the community, they are entitled to be prosecuted, particularly having regard to the publicity which was attendant upon the matters in suit.  He says that the Director of Public Prosecutions must consider the benefit to his clients that an acquittal would bring about.
		Mr. McGonigal contends that because the information which was put before the Director of Public Prosecutions disclosed prima facie evidence of an offence, then a prosecution ought to have been brought.  Even if a conviction were not guaranteed, then, he says, in the interest of justice, his clients ought to have been put on trial.
		In the course of argument, Mr. McGonigal accepted that he had not made and was not now making an allegation of mala fides against the Director of Public Prosecutions.  			No authority was cited for the contention that any citizen has a right or legal entitlement to be prosecuted in circumstances where an allegation of criminal wrongdoing is made against him.  If the making of such an allegation damages his reputation, he is not, in my view, devoid of remedies which are provided by law.  But, in my view, it would be going very far indeed to hold that once such an allegation is made, the Director of Public Prosecutions is obliged to institute a prosecution even in circumstances where it would be virtually certain that an acquittal would result.  Neither was Mr. McGonigal able to demonstrate, by reference to authority, any support for his argument that in carrying out his functions, the Director of Public Prosecutions was obliged to take into consideration any possible vindication of a prospective defendant's right to his good name.  Such a vindication could only occur if an acquittal was obtained.  I do not acccept that it is any part of the D.P.P.'s function to institute prosecutions in the hope or reasonable expectation of an acquittal.
		In my view, there is a fallacy underpinning the reasoning which was advanced in argument before me in support of the Plaintiffs' claim.  It is that in deciding to prosecute or not, the Director of Public Prosecutions is involved in deciding rights or liabilities.  As is clear from the judgment of O'Flaherty J. in H. v. Director of Public Prosecutions in deciding whether to bring or not to bring a prosecution, the Director of Public Prosecutions is not settling any question or dispute or deciding rights or liabilities.  He is simply making a decision on whether it is appropriate to initiate a prosecution.  Such an exercise was carried out in the present case and by deciding not to prosecute the Plaintiffs, it does not appear to me that the Director decided any rights, created any liabilities or settled any question or dispute.
		I have come to the conclusion that the Supreme Court has already decided in a definitive way the grounds upon which this Court can interfere and review a decision of the Director of Public Prosecutions.  The Plaintiffs have not placed themselves within the scope of that jurisdiction and, indeed, that much was effectively acknowledged in argument.  I do not consider that the additional arguments put on the basis of either an alleged right to be prosecuted or that the Director has a role to play in relation to the vindication of a person's reputation have any reasonable prospect of success.  Even if they did, there is nothing in the Statement of Claim or affidavits to suggest that a proper and valid decision was not made by the Director.						I am, therefore, satisfied that under the inherent jurisdiction, the claim as against the Director of Public Prosecutions must be struck out and I so order.