Commentary on Sections Trials on indictment without a jury Section 7: Limitation on challenge of issue of certificate
36.This section restricts the grounds on which the issue of a certificate by the DPP(NI) under section 1 may be challenged, whether by judicial review or otherwise. Challenge will be possible where it is alleged there has been dishonesty, bad faith or other exceptional circumstances (subsection (1)). It will be for the courts to decide what constitutes exceptional circumstances (though subsection (1)(c) makes clear that this may include exceptional circumstances relating to lack of jurisdiction or error of law).
37.This reflects the current case law in In Re Shuker and Others [2004 NI 367] which confirmed that the procedure for determining mode of trial of the accused, as applies in Diplock cases, is not a process suitable for the full panoply of judicial review. Judicial review of the Attorney General’s decision not to deschedule a Diplock case is reviewable, however, on grounds such as bad faith or dishonesty.