D v Director of Public Prosecutions
Court of First Instance
Constitutional and Administrative Law List No. 88 of 2015
Zervos J
Administrative Law
7 July 2015

Director of Public Prosecutions – decision not to prosecute alleged criminal offences – amenable to judicial review, but only in exceptional circumstances or where exceeded constitutional limits

X was a foreign domestic helper whose former male employer committed indecent acts on himself while standing behind her. X saw what M was doing from the reflection in a television and a glass cabinet. After X secretly filmed M in the act on her smartphone, M apologised. The Director of Public Prosecutions (the “DPP”) decided, by two letters, not to prosecute M for indecent assault as “The totality of evidence is equivocal as to whether [M] knew or appreciated the risk that [X] could and did see from the reflection” (the “Decisions”). X applied for leave to judicially review the Decisions, arguing that they applied the wrong test of recklessness and so were perverse. The DPP submitted that the Decisions were not amenable to judicial review.

Held, granting the application, that it was reasonably arguable that the Director had erred in his understanding and application of the law. The question of amenability to judicially review a decision not to prosecute in a new constitutional order and modern context was reasonably arguable both as a matter of principle and in the circumstances of the case. It was reasonably arguable at least whether the Decisions came within exceptional circumstances, such as dishonesty and bad faith, or had exceeded the constitutional limits.

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