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McFarlane -v- Director of Public Prosecutions
Neutral Citation:
[2008] IESC 7
Supreme Court Record Number:
High Court Record Number:
2006 542 JR
Date of Delivery:
Supreme Court
Composition of Court:
Hardiman J., Geoghegan J., Fennelly J., Kearns J., Macken J.
Judgment by:
Fennelly J.
Judgments by
Link to Judgment
Geoghegan J.
Fennelly J.
Hardiman J.
Kearns J.
Hardiman J., Macken J.

Record no: 0060/2007
Hardiman J.
Geoghegan J.
Fennelly J.
Kearns J.
Macken J.
- and -
Notice Parties

Judgment delivered the 5th day of March 2008 by Fennelly J.

Brief introduction and summary

1. The appellant stands charged with three offences alleged to have been committed by him between specified dates in November or December 1983. Most notable among them is a charge of the false imprisonment of one Donald Tidey at a location in County Leitrim. The other charges relate to possession of a firearm. These charges were preferred in January 1998.

2. The present proceedings are the appellant’s second application for orders prohibiting his trial. They come before this Court by way of appeal from the judgment and order of Quirke J in the High Court, dismissing his application

3. The first judicial review proceedings were commenced in November 1999. The appellant relied on two grounds: firstly, delay in the institution of the prosecution against him; secondly, the admitted loss by the gardaí of three items of physical evidence, upon which the prosecution alleged that the appellant’s fingerprints had been found. The appellant failed on the delay ground in both the High Court and this Court. He succeeded on the second ground in the High Court, but the Director of Public Prosecutions appealed to this Court, which allowed the appeal and dismissed the application for prohibition of his trial. The first set of judicial review proceedings ended on 7th March 2006 with the judgment of this Court. When initiating those proceedings, the appellant had secured an order from the Court restraining the DPP from continuing with the prosecution while the proceedings were pending.

4. On 15th May 2006, the appellant commenced the present judicial review proceedings, when the order granting leave was made. The first relief sought is a declaration that the delay in the hearing and determination of the first judicial review proceedings constituted a breach of the appellant’s constitutional right to a fair trial in due course of law in accordance with Article 38.1 of the Constitution or alternatively a breach of the appellant’s rights under Article 6 of the European Convention on Human Rights and Fundamental Freedoms. The appellant, consequently, seeks orders by way of prohibition and injunction. The essence of the complaint is that the entire process leading to the determination of the first judicial review proceedings, a total period of six years and four months, constituted a breach of the appellant’s rights and that, consequently, the Respondent (whom I will refer to as the DPP) should be prevented from continuing with his prosecution.

The facts: 1983 to 1998

5. At one level, the appellant’s complaint regarding delay should be confined strictly to an examination of the period it took to dispose of the first judicial review proceedings. However, the appellant has by no means abandoned his claim to rely on the undoubtedly long period which elapsed between the dates at the end of 1983, to which the charges relate and the commencement of the criminal prosecution at present pending against him. Counsel repeatedly described the case, at the hearing of the appeal, as being “old” or “ancient,” submitting that this placed an additional onus on the prosecution to expedite it. The appellant’s written submissions contain extensive reference to case-law on the right to an expeditious trial and emphasise that “the time factor, so often a complicating and confusing factor in a criminal trial is an extremely important feature in this case.” It is claimed that “the strength of the testimony that may be given viva voce by any witness on behalf of the prosecution may be weakened in strength and detail by reason of the lapse of time between the alleged offences and their future prosecution.Thus, the appellant includes, as part of the period of lapse of time the period of some sixteen years between the dates of the alleged offences and the commencement of the prosecution.

6. The essential facts relating to the period from 1983 to 1998 appear from the judgment of Hardiman J, speaking for the majority of the Court, dated 7th March 2006 concluding the first judicial review proceedings. They are as follows.

7. The appellant had been imprisoned in Northern Ireland since 1975. He was serving a long sentence of imprisonment for his part in the IRA bombing of a bar on the Shankill Road, Belfast, in which five people were killed. On 25th September, 1983, he escaped from the Maze Prison together with other prisoners. The offences with which he is now charged are alleged to have been committed in November or December of that year. In the aftermath of the rescue of Mr. Tidey the appellant was suspected by the gardaí of involvement in his kidnapping and false imprisonment.

8. In January, 1986, the appellant was arrested in the Netherlands and was found to be in possession of a stolen or forged Irish passport. On the 3rd December, 1986, he was extradited from the Netherlands to Northern Ireland. From that time until immediately prior to his arrest he was serving his sentence in Northern Ireland and this fact was known to the Gardaí. He was arrested in relation to the offences with which he is at present charged on 5th January 1998. This occurred upon his release after service of a period of some fifteen years in prison in Northern Ireland.

9. The appellant was detained by An Garda Síochána pursuant to s. 30 of the Offences against the State Act, 1939 as amended. In the course of being questioned, it is alleged that the appellant gave certain answers, which are material to the alleged offences. Hardiman J dealt with that issue in his judgment.

10. The result of the judgment of this Court of 7th March 2006 was that the evidence which the prosecution authorities considered necessary to establish a sufficient case to bring a charge against the appellant was not available until he had been questioned while detained. That was shortly before he was in fact charged. That, in the view of the majority of this Court, was fatal both to the contention, advanced on his behalf in that case, that he might have been proceeded against in Northern Ireland, pursuant to the Criminal Law (Jurisdiction) Act, 1976 or that his extradition might have been sought from Northern Ireland. Hardiman J concluded as follows:

      “On the evidence before the Court in this case there was simply no sufficient case against him on the present charges at any time while he was in custody in Northern Ireland. Accordingly, to attempt to proceed against him in either of the ways mentioned would not merely have been pointless, but would have been an abuse of the respective procedures.”
11. Hardiman J also rejected, as unrealistic, the suggestion that the gardaí might have sought to question the appellant about the present charges, while he was in custody in Northern Ireland. On this issue, the learned judge observed:
      “The applicant was a hardened criminal, serving a sentence for a very serious offence and suspected with reasonable grounds of involvement in another such offence. Nor could it be said that there was nothing to be lost by trying to interview him in respect of the present offences: any such attempt would have put him on notice of the Garda interest in him in that connection and might thereby render less effective any questioning of him when he eventually became available for arrest by the Gardaí.”
12. In the result, there was no basis for the applicant to complain about that delay, more properly called a lapse of time, between the date of the alleged offences and his being charged with them some fifteen years later. Apart from the point about the evidence, the appellant was either in prison in Northern Ireland, serving a sentence for a serious crime or unlawfully at large, having escaped from prison.

13. I have no doubt, therefore, that the appellant is entirely disentitled from complaining, in the present proceedings, about any delay by the prosecuting authorities. Nothing done or omitted by those authorities constituted an infringement of his rights.

The facts: time taken for the first judicial review proceedings

14. The following is a history of the period of over six years taken to dispose of the first judicial review proceedings.

      1. On 1st November, 1999, the High Court (McGuinness J.) made the order granting leave to seek judicial review so as to restrain the DPP continuing with the prosecution of the appellant in respect of the charges preferred against him on the two grounds already discussed;

      2. The High Court granted an order, pending the determination of the proceedings, restraining the DPP from continuing with the prosecution; accordingly, the date, in November 1999, which the Special Criminal Court had fixed for the trial was vacated;

      3. The appellant issued the Notice of Motion required by the High Court order, returnable for 29th November 1999; the case was adjourned at the request of the DPP and was successively adjourned on a number of other dates;

      4. The DPP delivered his Statement of Opposition on the 5th April, 2000;

      5. By a letter of 15th May 2000, the appellant’s solicitors wrote asking the DPP to agree to make voluntary discovery of documents; the DPP declined to do so;

      6. The appellant issued a Notice of Motion returnable before the Master of the High Court for 13th October 2000 seeking an order for discovery; that motion was adjourned by consent of the parties, but at the request of the DPP, and was due to be heard on 12th January 2001;

      7. On that date (12th January 2001), due to a misunderstanding of both parties, there was no appearance before the Master, who struck out the motion;

      8. On 29th May 2001, the appellant’s solicitors wrote to the Chief State Solicitor, seeking consent to have the matter re-listed; the Chief State Solicitor did not reply; a fresh motion was issued on 2nd October, 2001, returnable before the Master on 16th November, 2001; the motion was adjourned, at the request of the DPP, until 7th November and then to 1st February 2002;

      9. On 8th February, 2002 an Affidavit of Discovery was delivered on behalf of the DPP;

      10. On 11th March 2002, the DPP applied to the High Court for an order re-entering the judicial review proceedings, with a view to securing a place in the list to fix dates;

      11. However, the appellant’s solicitors, on review of the discovered material, concluded that the discovery was inadequate and applied, by Notice of Motion returnable before the Master on 14th May 2002, for an order for further and better discovery; the Master refused that order; the appellant appealed to the High Court; the affidavit sworn on behalf of the appellant says that the appeal was determined on 22nd July 2002; it appears that the appeal was refused;

      12. The proceedings were re-entered in the Judicial Review List where they were listed to be heard in the High Court on 14th March, 2003; on that date, the proceedings were adjourned due to the unavailability of a judge to hear the case; they were relisted and heard in the High Court, (Ó Caoimh J.), on 11th July, 2003. Judgment was delivered on 18th July, 2003.

      13. The Court made an order restraining the trial of the appellant in respect of the charges preferred against him on the grounds that the failure by the prosecuting authorities to preserve the items of evidence, already mentioned, inhibited his ability to defend himself against the charges;

      14. On 19th August, 2003, the DPP gave notice of appeal to the Supreme Court; there was difficulty and delay in obtaining the signed and approved transcript of the judgment of the High Court, which did not become available until September or October 2004;

      15. Books of Appeal were lodged on behalf of the DPP on 15th November, 2004, and on 27th January, 2005, the D.P.P. certified the case as ready to proceed in the Supreme Court.

      16. On 2nd February, 2006, the appellant applied for and obtained leave to bring a cross-appeal against that part of the High Court judgment which refused him relief in respect of alleged delay and to have it heard concurrently with the appeal on behalf of the DPP;

      17. The appeal was heard by the Supreme Court on 16th February, 2006. On 7th March, 2006, the Court delivered its judgment allowing the appeal on behalf of the DPP and refusing the cross-appeal of the applicant;

      18. On 4th April 2006, the Special Criminal Court assigned 3rd October 2006 as the date of the appellant’s trial;

      19. On 15th may 2006, the appellant applied for leave to bring the present proceedings.

      Issues in the case

15. The appellant accepts that he cannot, in these proceedings, complain about any delay by the prosecution in bringing him before the courts, which predates the first judicial review proceedings. Those issues were determined finally and conclusively against him in those proceedings and cannot be reopened. He claims the right, nonetheless, to refer to the fact that the DPP proposes to put him on trial in respect of events alleged to have occurred a very long time ago, in fact, approaching twenty five years.

He claims, in essence, that the six year period which it took to dispose of the first judicial review proceedings was excessive. He refers to “systemic delay.”

Quirke J characterised the nature of the application as follows:

        He [counsel] says that the applicant is now entitled to relief by reason of the combination of delay on the part of the prosecution authorities in bringing the applicant before the court and delay within the court process itself. He categorises the overall delay as “culpable” or “blameworthy” delay. He says that it has subjected the applicant to presumptive prejudice and to physical and emotional hardship, distress and inconvenience so grave that it is sufficient to require that his trial in respect of the alleged offences should be prohibited.”
16. It is important to note that the only substantive relief sought by the appellant is the prevention of his trial, based on the declaration mentioned. Although the statement of grounds mentions “any further and/or other relief as this Honourable Court deems meet and just,” the appellant has not identified any other relief and, in particular, has not suggested that he is entitled to damages for any of the alleged infringements of his rights.

17. The appellant accepts that the essence of his case on delay is captured in the passage from the judgment of Quirke J quoted above, read with a paragraph from the grounding affidavit, sworn on his behalf by Mr James McGuill, Solicitor. Having stated that the appellant had, during the period from 5th January 1998 (the date of his arrest) to 7th March 2006 (the date of the judgment of this Court) been “under the considerable pressure of being prosecuted with serious criminal offences,” and that after the passage of a period of fourteen years, “it was understandable that the [appellant] would seek an adjudication as to whether or not he had been prejudiced by virtue of the delay prior to 1998,” he then proceeds:

      “The delay from the granting of leave on 1st November 1999 to the ultimate disposal of the case on 7th March 2006, was not due to delays on the part of the [appellant] but rather was due to delays inherent in the court processes themselves. In particular there was a delay of one year and nine months between the respondents being requested to make Voluntary Discovery and their delivery of the necessary Affidavit. Furthermore the delay between the finding of the High Court in his favour and the ultimate disposal of the case in the Supreme Court a period of over 2 years and 7 months is not in any way due to the [appellant] and is due instead to a combination of the failure of the Respondent to certify the appeal as ready to proceed at an earlier date, and the delays inherent in the court system.”
18. In addition, counsel for the appellant has made reference to the period of four months between the date in March 2003, when no judge was available to hear the case and to the period of some fourteen months between the date of certification of readiness of the appeal and ultimate disposal by this Court.

19. The appellant also makes reference to a number of personal issues. He says that, since his arrest in January 1998, he has sought to get on with his life. He has married and become a father of three children. His youngest daughter (born 14th February 2003) has special needs. The family are dependent on him. He also cares for his mother, who is 86.

20. The appellant says he has complied with all his bail conditions. He has to sign on regularly at Dundalk Garda Station. This requires him to travel a distance of 160 km from his home in Belfast on the second Sunday in each month. He has also had to attend on at least forty occasions at the Special Criminal Court (a round trip of 320 km) for the mention of his case.

21. The appellant submits that the learned trial judge attached insufficient weight to the levels of stress, anxiety and inconvenience allegedly suffered by the appellant. Quirke J addressed this matter as follows:

      “It is to be inferred that the applicant suffered an increase in the level of his anxiety, stress and inconvenience as a result of the additional delays attributed to the State during particular periods of time throughout the conduct of the judicial review proceedings. However, any increased levels of stress, anxiety and inconvenience cannot be said to outweigh the community’s very considerable interest in having offences of the gravity of those which are the subject of these proceedings prosecuted to a conclusion. Furthermore if there has been a culpable or blameworthy delay on the part of the prosecuting authorities in and about the manner in which they sought to conduct the judicial review proceedings that delay was not of a kind which would warrant prohibition of the applicant’s trial.”
22. The DPP, in response to the submissions of the appellant, raises, as a preliminary point a submission that the appellant is disentitled from any relief by reference to the alleged delay in first judicial review proceedings. This is an attempt to re-litigate issues already argued and determined. He refers to the rule in Henderson v Henderson (1843) 3 Hare 100, A.A. v The Medical Council [2003] 1 I.R 308 and Law Society v Malocco (unreported 15th February 2005). The appellant should have applied for amendment his grounds in those proceedings, as was done in T. H. v DPP [2006] 3 I.R. 520. Alternatively, for the same reason, the DPP submits that the present proceedings are an abuse of the process of the courts. Thus, the question is raised as to whether the appellant should be permitted to argue the merits of his claim at all given that he has already pursued to finality a set of judicial review proceedings in which it was open to him to raise the issue of process delay, if necessary by applying for leave to amend his pleadings.

23. On the substance, the DPP submits that the only basis upon which a party such as the appellant can succeed in obtaining prohibition of his trial by reference to delayed prosecution is by pointing to some judicially cognisable prejudice affecting the fairness of that trial. He cites the following passage from the judgment of Quirke J:

      “It is of considerable significance that no evidence has been adduced on behalf of the applicant suggesting that anything has occurred since November, 1999, which has prejudiced the applicant’s capacity to defend himself in respect of the charges preferred against him. Nor has evidence been adduced indicating that he has suffered any additional presumptive prejudice by reason of the additional passage of time. At its highest point the evidence adduced on behalf of the applicant has established two, or perhaps three periods of unnecessary delay on the part of the prosecuting authorities in dealing with the applicant’s judicial review proceedings and in particular the State’s appeal against the decision of the High Court in those proceedings.No evidence has been adduced indicating that any consequence flowed from those delays which has interfered with any interest which the applicant’s right to an expeditious trial was intended to protect.”
24. The DPP also submits that, insofar as the Court makes any finding of delay, it is required to balance any prejudice allegedly suffered by the appellant against the public interest in the prosecution of serious crime.

25. It will, of course, be necessary to consider the facts and arguments in more detail. In particular, I will consider the preliminary objections of the DPP.

26. However, there are two principal aspects of the substance of the case. The great bulk of the period of time which has elapsed since the alleged commission of the offences in 1983, passed before the appellant was charged in 1998. During all of that time, the appellant was either in prison in Northern Ireland or “on the run.” He was certainly unavailable to the prosecuting authorities here. Since 1998, almost the entire time which has elapsed has been taken up with either first or the present judicial review proceedings. The prosecution has, during virtually all of that time, been prevented by orders secured at the behest of the appellant from proceeding with his trial. Furthermore, the appellant, having failed in his first judicial review proceedings, cannot point to any prejudice to the fairness of his trial. The appellant points, of course, to periods of delay on the part of the DPP in the conduct of the first judicial review proceedings. Presuming in his favour that there was some such delay and that it was culpable, certain questions naturally arise.

27. Firstly, may a person facing a criminal trial, after the lapse of a large number of years, establish breach of his constitutional or Convention rights, when that lapse is predominantly the result of his own actions? Secondly, assuming there have to have been fault causing delay by the prosecution authorities or the judicial system, does that fact lead to the right to have the trial prohibited, in the absence of any demonstrated prejudice to the fairness of the trial?

The preliminary point: abuse of process

28. I will first address the argument of the DPP that the appellant is estopped or prevented from maintaining the present proceedings by his failure, in the first judicial review proceedings, to advance to issue of delay. The delay now alleged consists, at least potentially, of the entire period of more than six years occupied by those proceedings. Hence, the grounds arose only during their currency and could not have formed part of the original judicial review grounds. It is said that, by the time of the hearing before O’Caoimh J in July 2003, some three and a half years had expired. That period included one of the two principal periods, involving discovery procedures, said to constitute culpable delay. It also included the period from March to July 2003, during which the matter had been adjourned due to the unavailability of a judge. The other principal period of complaint occurred after the High Court had given its decision.

29. Counsel for the DPP refers to the case of T.H. v Director of Public Prosecutions [2006] 3 I.R. 520, where such an amendment of grounds was permitted. In that case, the High Court decided in favour of the applicant on his complaint of delay, so introduced, while dismissing the application based on the original ground. The High Court decision was reversed by this Court, but it was not doubted that the High Court had power to permit an amendment of the grounds.

30. Counsel for the appellant said that the point regarding delay could not have been anticipated at the time of the original application for leave and could not, insofar as it concerned delay in prosecuting the appeal) have been taken for the first time in the Supreme Court.

31. The rule, known as the rule in Henderson v Henderson has been considered in several recent cases: Carroll v. Ryan [2003] 1 I.R. 309; A.A. v The Medical Council [2003] 4 I.R. 302; Law Society v Malocco; Mitchell v Ireland, Attorney General and another (unreported 28th March 2007).

32. The rule is aimed to prevent abuse of the courts’ process and to protect parties from being subjected to harassment by successive proceedings dealing with the same subject-matter. In essence, it discourages parties from keeping points over from one legal proceeding to another. If a point could have been raised in a first action (either by way of claim or defence), a party may not be permitted to raise it in a second. Wigram V.C. outlined the rule as follows in Henderson v Henderson:

      "I believe I state the rule of the court correctly when I say that where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time".
33. It is not a fixed or set rule. In a passage cited with approval by Hardiman J in his judgment in A.A. v The Medical Council, Lord Bingham expressed the following view in Johnson v. Gore Wood & Co. [2002] 2 A.C. 1 at page 31:
      “It is, however, wrong to hold that because a matter could have been raised in the earlier proceedings it should have been, so as to render the raising of it in a later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not."
34. In similar vein, Hardiman J, at page 317 of the same judgment stated:
      “Rules or principles so described cannot, in their nature, be applied in an automatic or unconsidered fashion. Indeed, it appears to me that sympathetic consideration must be given to the position of a plaintiff or applicant who on the face of it is exercising his right of access to the courts for the determination of his civil rights or liabilities.”
35. In A.A. v The Medical Council, this Court held that the rule applied. A medical practitioner had sought judicial review in respect of impending disciplinary proceedings; he alleged exposure to double jeopardy: he had been acquitted of criminal charges concerning the same subject matter. He failed in his application to prohibit the inquiry, but brought new proceedings in which he claimed that the Medical Council was acting in breach of natural justice, and infringement of his constitutional rights by reason of what he alleged to be the failure to provide legal aid. Hardiman J, at page 318 of the report, considered it to be “a very material fact that no tenable explanation whatever has been advanced, in pleadings, affidavit or oral argument, for the failure to raise the points now taken in relation to legal aid or funded legal representation when those proceedings were instituted and when the first order restraining the holding of an inquiry was obtained.” The fact that this failure was unexplained was held to be the determining feature of the proceedings.

36. In the more recent judgment of this Court in Mitchell v Ireland, Attorney General and another, Kearns J emphasised that the rule must not be “applied in a rigid or mechanical manner so as to deprive the court of any discretion to hold otherwise in an appropriate case. He treated the judgment of Hardiman J in A.A. v The Medical Council as requiring “a degree of flexibility.”

37. I do not regard the present case as an appropriate one for application of the rule. One must look at the entire context of the case, before concluding that the proceedings amount to an abuse of process. The delay alleged (at least not all of it) did not exist at the date of the application (on 1st November 1999) for leave. Hence, the ground of delay could not have been included, without obtaining further leave. The main period of alleged delay prior to July 2003 is the period between 15th May 2000 and 8th February 2002, when the application for discovery was being processed. I anticipate my conclusion on this issue by stating that, on any view, including, I believe, the appellant’s that delay was one for which the appellant must bear some of the responsibility. I cannot see, however, that it was an abuse of process not to apply for leave to amend so as to include that ground. Nor do I see how the appellant can be blamed for not taking that step in respect of the four month delay caused by the unavailability of a judge. That period immediately pre-dated the hearing before O’Caoimh. In order to include the entire period, the application would have had to be made at the commencement of that hearing. The DPP would clearly have been entitled to time to respond, which might even have delayed the hearing further.

38. I do not see, in the present case, any sufficient evidence of abuse of process to warrant excluding the appellant from the right to pursue this second set of judicial review proceedings. Thus, I propose to consider the appeal on its merits.

Breach of constitutional rights

39. The appellant invokes both the Constitution and the European Convention on Human Rights. He claims that the delay in disposing of the first judicial review proceedings violated his right to a trial in due course of law protected by Article 38.1 of the Constitution and his right to a hearing within a reasonable time in breach of Article 6 of the Convention.

40. The appellant asks the Court to prohibit his trial. He has not, at any stage, sought any other remedy.

41. The principles upon which this Court acts when deciding whether to prohibit a criminal trial, by reason of breach of the constitutional right to a trial in due course of law, are so well known as scarcely to need explanation. The jurisprudence has two aspects. The first concerns infringement of the right to a fair trial. The second concerns the right to a trial with due expedition, where different interests are protected.

42. Although this Court has been compelled to consider and refine its jurisprudence in its application to long-delayed trials for sexual abuse of children in a very large number of cases, there a single consistent thread has run through these cases since the early 1990’s. It is, as was stated by Finlay C.J. in Z v Director of Public Prosecutions [1994] 2 I.R. 476 at 506, that:

      “the onus of proof which is on an accused person who seeks an order prohibiting his trial on the ground that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by reason of those circumstances (which in that case also were pre-trial publicity) he could not obtain a fair trial.”
43. That passage has survived the passage of an enormous volume of litigation in this category and was cited by Hardiman J in his judgment for the majority of this Court in the first judicial review proceedings, where he added:
      “This is not a burdensome onus of proof: what is in question, after all, is the demonstration of a real risk, as opposed to an established certainty, or even probability of an unfair trial.”
44. Finlay C.J. had added (see page 507 of the judgment) that:
      “where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial.”
45. There cannot be any question of the appellant satisfying that standard in the present case. He failed in the first judicial review proceedings, where he claimed that the loss of items of physical evidence would have prejudiced the fairness of his trial. As I have already stated, he is not entitled to rely, in these proceedings, on the effect of delay, taken on its own, between 1983 and 1998, which was entirely his own responsibility. I will comment shortly on the extent to which it avails him under the second heading. He is left, therefore, with an entirely unspecific suggestion that the delay in the disposal of the first judicial review proceedings will render his trial unfair. Hence, the appellant cannot credibly ask the Court to prohibit his trial on the ground of “a real risk of an unfair trial.”

46. The courts have, however, also recognised the possibility that a trial should be prohibited for the quite distinct reason that there has been a breach of the right of an accused person to a trial with what Gannon J, in State(Healy) v Donoghue [1976] I.R. 325 at 334, described as “reasonable expedition…”. The dicta of Gannon J in that case have been repeatedly approved in later cases. Finlay C.J., in his judgment in Director of Public Prosecutions v Byrne [1994] 2 I.R. 236 cited it when holding the right in question to be one protected by Article 38.1 of the Constitution. In that case, the learned Chief Justice expressed the view, at page 245, that:

      “The right to reasonable expedition in the trial of a criminal charge would appear clearly to precede, as a natural right, not only the Constitution of Ireland, but the Constitution of the United States as well, and from an historical point of view would appear to derive directly from the Magna Carta and to be part of the common law.”
47. He also cited a now celebrated passage from the Opinion of Powell J in Barker v. Wingo (1972) 407 U.S. 514, a decision of the Supreme Court of the United States, dealing with the prejudice which may flow from a breach of that right:
      “Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimise anxiety and concern of the accused; and (iii) to limit the possibility that the defence will be impaired."
48. The same learned judge then said:

“A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.”

49. Commenting on the penultimate of these factors, he continued:

      “Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.”
50. Although the judgment of Powell J in Barker v Wingo has been influential in the development of our case-law on the right to reasonable expedition and the consequences of its breach, we have now established a consistent approach, particularly in some recent cases.

51. In P.M. v Malone [2002] 2 I.R. 560 Keane C.J. reviewed the cases. He noted that an accused person, when invoking the discrete right to a fair trial was not confined to demonstrating that his ability to defend himself had been impaired. He also identified pre-trial loss of liberty and “anxiety and concern of the accused resulting from a significant delay in his being brought to trial.” He discussed at length the question of whether pre-complaint delay could be taken into account when assessing delay. He cited the judgment of Lamer J in Mills v The Queen 91986) 29 D.L.R. 161 and that of Gannon J in O’Flynn v District Justice Clifford [1988] I.R. 740. While these were authorities suggested that pre-complaint delay or lapse of time did not confer any rights on an accused person, he concluded at page 579:

      “I am accordingly, satisfied that in determining whether the concern and anxiety caused to an accused person is such as to justify the prohibition of his trial on the ground that his constitutional right to a reasonably expeditious trial has been violated, the court, depending entirely on the circumstances of the particular case, may be entitled to take into account, not merely delay subsequent to his being charged and brought to trial, but also delay prior to the formal charge. It is to be remembered that, in upholding the applicant's rights in such a case, the court is not merely vindicating and protecting the rights of all persons coming before the courts to the dispatch of criminal proceedings against them with reasonable expedition. It is also upholding the general public interest in the speedy prosecution of crime.”
52. At a later point in his judgment (page 581) the learned Chief Justice identified as the essential issue for resolution the question whether, assuming a breach of the constitutional right to a reasonably expeditious trial, the prohibition of the trial was justified. He answered that question as follows:
      “Where, as here, the violation of the right has not jeopardised the right to a fair trial, but has caused unnecessary stress and anxiety to the applicant, the court must engage in a balancing process. On one side of the scales, there is the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay. On the other side, there is the public interest in the prosecution and conviction of those guilty of criminal offences. In all such cases, the court will necessarily be concerned with the nature of the offence and the extent of the delay.”
53. This Court has reiterated that approach in P.M. v Director of Public Prosecutions [2006] 3 I.R. 172. Kearns J, speaking for a unanimous court, cited the above judgment of Keane C.J. Having done so, he continued:
      “I believe that the balancing exercise referred to by Keane C.J……… is the appropriate mechanism to be adopted by a court in determining whether blameworthy prosecutorial delay should result in an order of prohibition. It means that an applicant for such relief must put something more into the balance where prosecutorial delay arises to outweigh the public interest in having serious charges proceed to trial. In most cases, pre-trial incarceration will not be an element as an applicant will probably have obtained bail pending his trial. Secondly, while he may assert increased levels of stress and anxiety arising from prosecutorial delay, any balancing exercise will have to take into account the length of such blameworthy delay, because if it is a short delay rather than one of years, the mere fact that some blameworthy delay took place should not of itself justify the prohibition of a trial.”
54. Based on the foregoing authorities, it is necessary to consider, firstly, whether the period that it took to dispose of the first judicial review proceedings constitted a violation of the appellant’s right to a trial with due expedition and, assuming an affirmative answer to that question, whether, having regard to all the circumstances, the Court should make an order prohibiting the DPP from continuing with his prosecution.

55. The first question requires close examination of the periods of time taken to conclude the first judicial review proceedings.

56. The appellant complains, firstly, of the period taken to deal with the issue of discovery of documents. The total period was from 15th May 2000, when the appellant’s solicitors asked the DPP to agree to make voluntary discovery to 8th February 2002, when an affidavit of discovery was sworn. Although the DPP declined to make voluntary discovery, the appellant did not serve a Notice of Motion until July, which was returnable for 13th October. No particular complaint is made about the subsequent adjournments until 12th January, when neither party appeared in the Master’s court. Fault for that would have to be equally apportioned, but the appellant had carriage of the judicial review proceedings and of the discovery motion, in particular. He did not write to the DPP for another four and a half months. He did not then succeed in having a fresh Notice of Motion issued until 2nd October. It was returnable for 16th November 2001. Again, no particular complaint is made about adjournments until the month of February 2002, when the affidavit was sworn.

57. I am very far from saying that it should have taken a period of one and three quarter years to dispose of a quite ordinary application for discovery. In my judgment in T.H. v Director of Public Prosecutions [2006] 3 I.R. 520, dealing with a comparable situation, I doubted whether it was correct “to scrutinise the various steps taken in the litigation with a view to assigning blame when a party unsuccessfully but bona fide takes or opposes a step in the procedure.” In the present case, a very substantial part of the delay in completing the discovery process must be laid at the door of the appellant. Apart from having carriage of the proceedings, he had secured an order restraining his continued prosecution. There is no evidence that he treated the discovery application as involving any particular urgency. Indeed, even at its conclusion, he agitated the matter further by pursuing an unsuccessful application for further discovery, including an application to the High Court. This carried the matter up to the end of July 2002. Looking at this period in the round, I cannot conclude that the appellant has established a breach of his constitutional right to a fair trial.

58. I would also reject the suggestion that the adjournment of the hearing of the case from March to July 2003, due to the unavailability of a judge amounted to such a breach. That type of event will occasionally occur in a busy court system, even when and perhaps especially when the courts are endeavouring to dispose of a large volume of business. In any event, the appellant had judgment on his application on 18th July. He could scarcely have complained if he had secured a hearing in March and a reserved judgment had been delivered in July.

59. The appellant’strongest point undoubtedly relates to the lapse of a period of more than one year from the filing of a notice of appeal by the DPP and the date when the approved transcript of the judgment of the High Court, became available. The delay does not appear to be attributable to the DPP, but that does not deprive the appellant of the right to complain about it. The DPP lodged the books of appeal in reasonable time and certified the case as ready in January 2005. I certainly do not see any basis for complaint about the fact that it took a period of one year for the case to be reached in the Supreme Court’s list. Judgment was delivered promptly.

60. In respect of the period of more than a year which it took to have the transcript produced and the case certified, I accept that the appellant might have legitimate ground for complaint. However, he took no steps whatever to expedite the appeal. He could have issued a Notice of Motion, as is done by respondents as a matter of common routine, asking the Court to dismiss the appeal or, alternatively, to order the DPP to take steps to expedite the appeal. It seems as if, having secured an order of prohibition in the High Court, he had no pressing need to get the appeal on.

61. In the result, I accept that there was significant delay on the part of the DPP in prosecuting his appeal in the first judicial review proceedings. However, in the entire context of the case, it was not such as to amount to a breach of the appellant’s constitutional right to an expeditious hearing of the criminal charges against him.

62. In spite of that conclusion, I will address the issue on the assumption that there was delay amounting to a breach of the constitutional right of the appellant to such an expeditious hearing. I must apply the balancing test required by the authorities.

63. Recalling the words of Kearns J in P.M. v Director of Public Prosecutions, it is necessary to see what the appellant has put into the balance. He says that, from 5th January 1998 he was “under the considerable pressure of being prosecuted with serious criminal offences He also refers to his family circumstances and to the fact of being required to sign on once a month at a garda station and to appear at the Special Criminal Court for mention of the case.

64. Firstly, I do not consider that, taken in its entirety the delay in the conduct of the first judicial review proceedings contributed significantly to the overall length of the criminal proceedings. At most a period of between one and two years is involved. Set against the backdrop of a trial for offences alleged to have been committed in 1983, I do not find that period to be particularly significant. Secondly, the appellant was, at all material times, the beneficiary of an order of the High Court restraining the further conduct of the criminal proceedings. He was the initiator of and had carriage of the proceedings. He could have taken steps to accelerate them. It does not appear that he ever did so. I here recall the dictum of Powell J, quoted above that “failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Thirdly, there is the crucially important point that the Court must have due regard to the public interest in the prosecution of serious crime. The Court must have regard to the seriousness of the offences. Keane C.J. examined the nature of the criminal offending in P.M. v Malone. He emphasised the unusual features of the case: the sexual offending alleged “began as a form of sexual experimentation between two children under the age of ten and continued for a relatively short time after the applicant had reached the stage at which, in the eyes of the law, his actions attracted the same degree of criminal responsibility as adults.” He was “satisfied that……the nature of the offences with which the applicant is now charged, coupled with the inordinate and wholly unjustifiable delay in bringing them to trial, renders this a case in which the constitutional right of the applicant to a reasonably expeditious trial outweighs any conceivable public interest there might be in the prosecution of the alleged offences.”

65. Nothing of the sort could be said in this case. The appellant accepts, indeed emphasises, that the offences with which he is charged are serious ones. They involve allegations of a kidnapping together with the use of firearms.

66. I do not accept that the type of anxiety about being charged with criminal offences or being required to sign on or to attend at Court could possibly justify an order preventing the appellant’s trial. These disadvantages are inherent in the criminal process. They commenced, as the appellant says, on 5th January 1998. The appellant is entitled to complain about the extent to which they were exacerbated or prolonged by the breach of his right to an expeditious trial. He did not apply for leave to apply for judicial review until 1st November 1999. Thus, it is only from that date that he may legitimately advance this complaint. Once the appellant chose to apply for judicial review, some further delay in his trial was inevitable. It is a question of degree. On any view, disposal of the proceedings (including an appeal to this Court) was bound to take a minimum period of two to three years. I have suggested that the proceedings were lengthened by a period of one to two years. An exacerbation of the complaint of pressure from facing criminal charges (including having to sign on and attend at court) for that additional period could not possibly, on the facts of the present case counter-balance the right the public interest in having the appellant put on trial for the indisputably serious offences involved.

67. I agree with the conclusion of Quirke J that there were at most two or three periods of unnecessary delay and that nothing in the evidence indicated that “any consequence flowed from those delays which has interfered with any interest which the applicant’s right to an expeditious trial was intended to protect.” Thus, I would dismiss the appeal.

European Convention on Human Rights

68. Having thus disposed of the appeal, I, nonetheless, wish to address the appellant’s reliance on Article 6 of the Convention. The Convention is not directly effective in Irish Law. Article 29.6 of the Constitution provides:

      "No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas."
69. (See In re Ó Laighléis [1960] I.R. 93; Kavanagh v Governor of Mountjoy Prison [2002] 3 I.R. 97.)

70. The European Convention on Human Rights Act, 2003 came into effect on 1st January 2004. That Act gives defined effect to the provisions of the Convention. The Act has not been relied upon in the present case, probably because most of the evnts of which complaint is made had occurred prior to its entry into force.

71. Nonetheless, the courts can and do draw inspiration and assistance from the Convention and from decisions of the European Court of Human Rights, when interpreting analagous provisions of the Constitution. The first sentence of Article 6.1 of the Convention provides:

      “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
72. The right to a trial within “a reasonable time” and a trial “with reasonable expedition” are indistinguishable. The difference is in the remedy. Article 41 of the Convention provides:
      “If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
73. Thus a successful applicant before the Court of Human Rights may, in addition to having a finding made in his favour, be awarded a monetary sum. But the decision, both as to finding and the award of just satisfaction are made against the Member State and are binding in international law. The Court does not make any decision adverse to or binding on the courts or the prosecuting authorities. In particular, the Court of Human Rights has no power to and does not purport to make any orders affecting national proceedings. It does not order them to be stopped and does not even express any view as to whether they should be stopped. This was clearly explained by Keane C.J. in his judgment in Barry v Director of Public Prosecutions [2003] IESC 63 (17 December 2003):
      “The decision of the majority of the court [of Human Rights] in Doran –v- Ireland is authority for the proposition that unreasonable delay in the determination of proceedings resulting from the procedures ordained in legislation or otherwise by the member state may result in an award of damages payable by the state to the injured party but does not have the effect of entitling a party in the domestic courts to relief which would otherwise not be available to him.”
74. I made a similar observation in my own judgment in T.H. v Director of Public Prosecutions, cited above.

These observations are relevant to the interpretation of the judgments of the Court of Human Rights. That court does not engage in the balancing exercise described in the Opinion of Powell J in Barker v Wingo and in the decisions of this Court (such as P.M. v Malone and P.M. v Director of Public Prosecutions). That exercise is neither necessary nor relevant to the decision as to whether to award just satisfaction. Consequently, the decisions of the Court of Human Rights provide useful guidance on the question of whether there has been a breach of the right of an accused person to a trial within a reasonable time or with reasonable expedition. For example, in its judgment in the case of Barry v Ireland (Application No. 18273/04) on 15th December 2005, the Court restated its consistent approach to the assessment of a reasonable time as follows (paragraph 36 of the judgment; citations omitted):

      “The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities……. On the latter point, what is at stake for the applicant in the litigation has to be taken into account.
75. A further passage from the judgment of the Court also calls for observation. It appears that the representatives of Ireland had submitted to the Court that judicial review, which was available to the applicant in that case, provided an effective remedy in domestic law and that “damages might have been available as a remedy in the judicial review proceedings, if the applicant had sought them.” The Court’s response to that argument (at paragraph 43) was:
      “There is no evidence that such proceedings would have been capable of providing damages and the Government accepted that there was no domestic legal provision for an award of damages in following proceedings. Although the Government argued that the common law might be flexible enough to provide such a remedy, they did not refer to one precedent even tending to support this argument. Moreover, the judgment of the Supreme Court made it clear that Convention case-law would not cause the domestic courts to fashion any remedies that would not otherwise have been available (see paragraph 23 above).”
76. I would remark that, in that case, as in the present case, no claim for damages had been made. Nor, so far as I am aware, has any such claim ever been made in such a case. In every such case, the accused person, in practice, seeks the remedy of prohibition of his trial. It is clearly not possible for this Court, having an appellate function only, to pronounce in the abstract on whether damages would be available as a remedy, they it were claimed. Any such claim would have to be made in the High Court in the first instance. The Act of 2003 might be relevant.

77. I would also add that the Court may have somewhat misapprehended the remarks of Keane C.J. in the passage of his judgment in Barry v Director of Public Prosecutions, which I have cited and which it also quoted. Keane C.J. was merely saying that a particular judgment of the Court of Human Rights did not have effect in domestic law. Whether these courts would “fashion remedies” in the light of the case-law of that Court is a quite different matter and would have to await an appropriate case. Again the Act of 2003 may or may not be relevant.

78. The result of this excursus into the case law from the Court of Human Rights is that it does not affect the conclusion I have already reached, namely that the appellant has not established that he has a right to have his trial prohibited.

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