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Judgment
Title:
McFarlane -v- Director of Public Prosecutions
Neutral Citation:
[2008] IESC 7
Supreme Court Record Number:
60/07
High Court Record Number:
2006 542 JR
Date of Delivery:
03/05/2008
Court:
Supreme Court
Composition of Court:
Hardiman J., Geoghegan J., Fennelly J., Kearns J., Macken J.
Judgment by:
Kearns J.
Status:
Approved
Result:
Dismiss
Judgments by
Link to Judgment
Concurring
Geoghegan J.
Fennelly J.
Hardiman J.
Kearns J.
Hardiman J., Macken J.


THE SUPREME COURT
Hardiman J.
Geoghegan J.
Fennelly J.
Kearns J.
Macken J.
[SC. No. 60 of 2006]
BETWEEN
BRENDAN McFARLANE
APPLICANT/APPELLANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
AND
THE MEMBERS OF THE SPECIAL CRIMINAL COURT
NOTICE PARTIES

JUDGMENT of Mr. Justice Kearns delivered the 5th day of March, 2008

This appeal raises serious issues about the effects of delay on the entitlement of the State to prosecute criminal offences. It is an issue which has given rise to much anxious consideration by this Court in recent years, particularly in the context of offences relating to the sexual abuse of children. Evaluating reasons for delay and attributing blame for delay in reporting abuse (complainant delay or pre-charge delay) came to be seen as a far from simple exercise in those cases. Because of the often hidden nature of those particular types of crime, there were many instances where criminal prosecutions only became possible many years after the incidents themselves when the victim or complainant finally reported abuse to the authorities. The courts were repeatedly called upon from the mid 1990s onwards to adjudicate between the community’s right to see serious crimes prosecuted whilst defending an accused person’s right not to be subjected to an unfair trial. The prejudicial effects of long delay were frequently invoked and relied upon by applicants to argue that no trial should take place. The right to a trial in due process of law is a right guaranteed by Article 38.1 of the Constitution and thus where it is established that there is a real risk of an unfair trial, a risk which can not be overcome by rulings or directions from the trial court, the courts in this jurisdiction will prohibit such a trial from taking place.

That was one form of delay. Delay can also arise from the tardiness of the police, either in investigating an alleged crime after it has been reported, or on the part of the prosecuting authorities in bringing an alleged perpetrator before the courts and in taking the necessary steps to prepare a case for trial. The jurisprudence makes clear that this form of delay, called ‘prosecutorial delay’, may also entitle an applicant to relief in the form of prohibition in certain circumstances. This will arise because an applicant is also entitled to a trial with reasonable expedition as part of his constitutional rights under Article 38.1.

Delay may also arise when the State, by its failure to provide adequate resources or facilities for the disposal of litigation, has itself contributed to delay. ‘Systemic delay’ of this nature may overlap to some degree with prosecutorial delay and run hand in hand with it. There may be prosecutorial delay within systemic delay. Equally there may be no blameworthy delay by the prosecution but there may yet be delays within the system to which an applicant has in no way contributed. There may also be judicial delay where the court fails to deliver its judgment or decision within an appropriate time frame. Where systemic delay is established it may amount to an infringement of a citizen’s constitutional right to a trial with reasonable expedition. Such forms of delay may also amount to an omission or failure on the part of the State to comply with its obligations under the European Convention on Human Rights, in particular article 6 thereof which 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”.
In the present case it is claimed that there was both prosecutorial delay and delays within the system which prevented an earlier set of judicial review proceedings being disposed of within a reasonable time. There is no suggestion that there was any form of judicial delay contributing to that alleged delay. The Court must thus consider the circumstances in which delay of the sort complained of, particularly when superimposed upon an already lengthy interval of time between the offence and the completion of pre-trial court procedures, may entitle an applicant to obtain prohibition of his trial.

BACKGROUND

The factual background surrounding the alleged offences in this case is elaborated in greater detail in the first set of judicial review proceedings in this matter and need only be summarised briefly. On 24th November, 1983, Mr. Don Tidey, one of Ireland’s best known businessmen, was abducted and held at a primitive hideout in a wooded area of County Leitrim where he remained until the 16th December, 1983. On that date Mr. Tidey was rescued from his dire predicament by the garda. During a shoot-out which occurred in the course of his rescue a garda recruit, Gary Sheehan, and an army private, Patrick Kelly, were shot dead. The kidnappers made good their escape, but amongst a number of items left behind at the scene were a milk container, a plastic container and a cooking pot. It is part of the State’s case that the applicant’s fingerprints were found on these items. The applicant was thus a prime suspect in the garda investigation which followed.

Certain things were known about the applicant. He had been imprisoned in Northern Ireland since 1975, serving a long sentence of imprisonment for his part in the I.R.A. bombing of a bar on the Shankill Road in Belfast in which five people were killed. On 25th September, 1983, the applicant, along with other prisoners, managed to escape from the Maze Prison. The kidnapping of Mr. Tidey occurred not long afterwards in November, 1983. The applicant was arrested in The Netherlands in January, 1986 at which point he was found to be in possession of a stolen or forged Irish passport. On 3rd December, 1986, he was extradited from the Netherlands back to Northern Ireland. From that time until some time shortly prior to his arrest, he was serving his sentence in Northern Ireland, a fact that was known to the garda. The garda did not seek to interview the applicant in relation to the Tidey abduction while serving his sentence in Northern Ireland because it was believed he would not co-operate in any such venture and would be entitled to refuse to see any garda that sought to interview him whilst in prison in Northern Ireland. The applicant was on parole in this jurisdiction at the time of his eventual arrest on 5th January, 1998.

The statements of the garda witnesses make clear that, following arrest, the applicant for the most part declined to answer questions and simply stared at the wall. It is alleged, however, that he did make certain admissions while being questioned. Specifically, it is alleged when asked about his involvement “in Drumcroman Woods” he said:-

      “On the advice of my solicitor I will not discuss it. I was there you can prove that but I will not talk about it.”
He was also questioned as follows:-
      “Q. What do you expect will happen to you? A. I am prepared for the big one. I have already talked to her [his girlfriend who had been to see him] about our future and house.

      Q. Do you mean murder? A. I am prepared for the worst.”

These alleged admissions, together with the fingerprints, constitute the case against the applicant. Neither in the course of previous proceedings, nor in the present proceedings, has the applicant disputed the admissibility or accuracy of the evidence in relation to these alleged admissions. However, in the years following the events at Drumcroman Woods, the various items upon which it was alleged the applicant had left his fingerprints became lost in Garda Headquarters in the Phoenix Park in Dublin where they had been stored. From evidence given in the first judicial review proceedings, described in the next paragraph hereunder, it appears that these items were preserved in a specific room in Garda Headquarters in 1983. The room in question was subsequently changed in use from storeroom to a library and conference room and the items in question could not thereafter be traced or located. However, photographs of the fingerprints on the items had been taken and the same were preserved and are available for use at any trial of the applicant. Their loss, however, featured prominently in the first set of judicial review proceedings brought herein.

Before describing those proceedings it is perhaps useful at this point to set out a chronology of the relevant dates which relate to the various steps taken by the parties in this litigation to date:-

      1) 5 January, 1998: The applicant is arrested and subsequently charged with offences arising from the abduction of Mr. Tidey

      2) 14th July, 1998: The applicant is served with the Book of Evidence containing statements of the evidence proposed to be given at trial.

      3) 1st November, 1999: The applicant seeks and obtains leave to bring judicial review proceedings, in which he seeks to prohibit his trial both on the basis of prejudice arising from the loss of the items on which his fingerprints were allegedly found and, also on the basis of prejudice arising from delay. As part of the relief on the granting of this application, the applicant obtains a stay on his prosecution.

      4) 9th November, 1999: A trial date which had been fixed for the appellant’s trial is vacated having regard to the applicant’s ongoing judicial review proceedings.

      5) 5th April, 2000: The respondent files opposition papers to the applicant’s judicial review application.

      6) 15th May, 2000: The applicant makes request for voluntary discovery. The respondents decline to make voluntary discovery.

      7) 13th October, 2000: Return date for applicant’s Motion for Discovery before the Master of the High Court.

      8) 12th January, 2001: Discovery motion is struck out as both parties make an error about the correct date of the hearing.

      9) 29th May, 2001: The applicant’s solicitor writes to Chief Prosecution Solicitor seeking to have the motion re-entered.

      10) 2nd October, 2001: The applicant brings a fresh Motion for Discovery.

      11) 16th November, 2001: Return date for the fresh Motion of Discovery before the Master of the High Court.

      12) 8th February, 2002: An Affidavit of Discovery is filed on behalf of the respondent listing 93 documents in its schedule.

      13) 1st March, 2002: The Motion for Discovery is struck out by consent of the parties.

      14) 14th May, 2002: Return date for the applicant’s Motion for Further and Better Discovery.

      15) 11th June, 2002: The Master of the High Court refuses the applicant’s Motion for Further and Better Discovery.

      16) 22nd July, 2002: The High Court refuses the applicant’s appeal from the Master’s Order refusing the applicant’s Motion for Further and Better Discovery.

      17) 14th March, 2003: The substantive judicial review is listed for hearing but does not proceed on the date allocated due to unavailability of judges.

      18) 11th July, 2003: The substantive judicial review is heard by the High Court (O’Caoimh J.) (The first judicial review proceedings)

      19) 18th July, 2003: Judgment is delivered by O’Caoimh J in which he prohibits the trial, holding in favour of the applicant only in respect of missing evidence but rejecting applicant’s case about delay.

      20) 19th August, 2003: The respondent lodges Notice of Appeal to the Supreme Court.

      21) October, 2004: A signed transcript of the High Court Judgment is obtained.

      22) 25th January, 2005: The Certificate of Readiness is lodged in the Supreme Court Office.

      23) 2nd February, 2006: The applicant applies for and is given leave to bring a Cross -Appeal on the delay issue.

      24) 16th February, 2006: The Supreme Court hears the appeal.

      25) 7th March, 2006: The Supreme Court delivers judgment allowing, by a majority, the appeal on missing evidence point but upholding unanimously the finding of the High Court in relation to delay.

      26) 4th April, 2006: The Special Criminal Court assigns 3rd October, 2006, as the date of the applicant’s trial.

      27) 15th May, 2006: The applicant seeks and obtains leave to bring the present proceedings (i.e. the second judicial review proceedings).

      28) 8th November, 2006: Judgment is delivered by the High Court refusing the applicant relief.

      29) 24th January, 2008: The Supreme Court hears the appeal in present proceedings.

      30) 5th March, 2008: The Supreme Court delivers judgment in present proceedings.

FIRST JUDICIAL REVIEW PROCEEDINGS

As noted above, the High Court made an order prohibiting the trial of the applicant on the ground that the failure on the part of garda authorities to retain the items which had been lost and which were said to contain the applicant’s fingerprints resulted in there being a real or serious risk of an unfair trial. However, the High Court rejected the applicant’s claim based on the issue of delay, distinguishing between delay prior to charge and delay subsequent to charge. In that application the High Court was concerned with pre-charge delay only.

The Director of Public Prosecutions appealed that part of the judgment and order of the High Court which prohibited the trial of the applicant. The applicant, for his part, cross-appealed the order of the High Court in so far as the same dismissed his application for prohibition on the grounds of delay. This cross-appeal was lodged at a very late stage shortly before the hearing before this Court.

This Court, by a majority, held that, as there had been a forensic examination of the missing items prior to their disappearance, and given that the results of the forensic analysis had been preserved, the applicant had not been deprived of the reasonable possibility of rebutting the evidence proffered against him and thus had not discharged the onus of proof that there was a real risk that he could not have obtained a fair trial.

On the issue of delay, all five judges of this Court were in agreement in that the lapse of time or delay was not such as should give rise to an order prohibiting the trial of the applicant. This Court held that the garda were entitled to adopt the position that they would conduct questioning of the applicant following his arrest under s.30 of the Offences against the State Act 1939, as amended, in this jurisdiction when the applicant would have been obliged to listen to the questions, if not to answer them, and when (subject to the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Siochana Stations Regulations. 1987 (S.I. No. 119 of 1987)), the structure and duration of the questioning would have been in the control of the garda and not that of other authorities or that of the applicant himself. Further, and given that the garda did not have available to them the evidence relating to the admissions until the arrest of the applicant in this jurisdiction, there were no proper grounds for charging the applicant with an offence at any earlier time. Thus, their failure to do so and the lapse of time before they were in a position to do so could not give the applicant the right to prohibit a trial on the basis of the defeat of his constitutional right to an expeditious trial. Accordingly, all complaints of delay were dismissed by this Court.

No complaint of prosecutorial or systemic delay was at any time raised by the applicant in the first judicial review proceedings. Furthermore, when the applicant belatedly filed his own Notice of Cross -Appeal on the delay issue he failed to make out on affidavit or otherwise any complaint of systemic delay, or even to suggest that there had been systemic delay, although this was an option available to him both then and in the High Court. Counsel for the applicant has not seriously quarrelled with the proposition that he could, without difficulty, have obtained an amendment of the pleadings in the first judicial review case for the purpose of arguing the issue of systemic delay up to the time of the hearing before O’Caoimh J. in those first proceedings.

THE PRESENT PROCEEDINGS

In the present proceedings the applicant claims:-

      (1) A Declaration that the delay in the hearing and determination of proceedings relating to the criminal prosecution of the applicant with the offences said to have occurred between 25 November, 1983 and 16 December, 1983 which are presently pending before the Special Criminal Court constitute a breach of the constitutional entitlement to a fair trial in due course of law and a fair trial in accordance with Article 38.1 of the Constitution

      (2) A Declaration, in the alternative, that the said delay constitutes a breach of article 6(1) of the European Convention on Human Rights and Fundamental Freedoms

      (3) An Order granting to the applicant leave to apply for an order prohibiting the respondent from taking any further steps in the prosecution of the Applicant.

Leave was granted by the High Court (Peart J.) on 15th May, 2006 to bring the said proceedings. A Statement of Opposition was filed on 13th July, 2006. Various affidavits were sworn and filed by both sides and the matter came on for hearing before the High Court (Quirke J.) who gave judgment on the 8th November, 2006 (McFarlane v D.P.P. [2006] IEHC 389). No complaint is advanced that the present judicial review proceedings were affected by either prosecutorial or systemic delay. On the contrary, the applicant points to the present proceedings as an example of how the system should work and invites the Court to contrast the time taken in the present case with that taken to complete the first judicial review proceedings.

In the course of his judgment Quirke J held that no evidence had been adduced on behalf of the applicant suggesting that anything which had occurred since November, 1999 had prejudiced the applicant’s capacity to defend himself in respect of the charges preferred against him. Quirke J. furthermore stated:-

      “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”

The periods identified by Quirke J. as being unnecessary periods of delay were as follows:-
      (a) The 13 month period between 12 January, 2001 and 8 February, 2002 – this was the period between the date when the applicant’s Motion for Discovery was struck out and the date when an Affidavit of Discovery was delivered on behalf of the D.P.P. In holding such period to be excessive, Quirke J. attributed the delay to both parties.

      (b) The period of approximately 18 months between 19 August, 2003 and 27 January, 2005 – this was the period between the lodgement of a Notice of Appeal by the respondent in the Supreme Court and the filing by him of a Certificate of Readiness to Proceed. Quirke J. found this delay had not been adequately explained by the respondent and was excessive

      (c) The period of 14 months between 27 January, 2005 and 7 March, 2006 – the latter date being that on which this Court gave judgment – Quirke J pointed to an absence of evidence which would enable him find whether such delay was excessive in this or other jurisdictions.

Having then conducted a careful review of the relevant case law, including the decisions of this Court in P.M. v Malone [2002] 2 I.R. 560, P.M. v D.P.P. [2006] 3 I.R. 172, T.H. v D.P.P. [2006] 3 I.R. 520 and the decision of the European Court of Human Rights in Barry v Ireland [2005] E.C.H.R. 865 (15 December 2005), Quirke J. concluded that while the applicant had asserted increased stress and anxiety caused to him by delay, the same was not such as would 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.”

Having conducted a balancing exercise in this manner, Quirke J. refused to prohibit the trial and it is from such refusal that this appeal is brought.

CONSEQUENCES OF FAILURE TO RAISE ISSUE OF SYSTEMIC DELAY IN FIRST JUDICIAL REVIEW PROCEEDINGS

Counsel for the respondent raised a preliminary issue before this Court which he said arose from the failure of the applicant to argue systemic delay before O’Caoimh J. in the High Court in the original judicial review proceedings. He submits that the applicant is not as a result entitled to argue any issue of systemic delay in these proceedings by reason of the rule in Henderson v. Henderson (1843) 3 Hare 100. The rule or principle was formulated in the judgment of Wigram V.C. as follows at pp 114 and 115:-

      “..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 matter 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.”
The underlying reason for the rule in Henderson v. Henderson is a simple one. Public policy dictates that litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do. In Woodhouse v. Consigna [2002] 1 W.L.R. 2558, Brooke L.J. characterised the public interest requirement in the following manner at p.2575:-
      “… at least as important is the general need, in the interests of justice, to protect the respondents to successive applications in such circumstances from oppression. The rational for the rule in Henderson v. Henderson (1843) 3 Hare 100 that, in the absence of special circumstances, parties should bring their whole case before the court so that all aspects of it may be decided (subject to appeal) once and for all is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever, and that a defendant should not be oppressed by successive suits where one would do ….”
The courts in this jurisdiction, not least in the interests of reducing delay, have followed this line of authority for many years in cases such as Russell v. Waterford and Limerick Railway Company (1885) 16 L.R.Ir. 314; Cox v. Dublin City Distillery (No.2) [1915] 1 I.R. 345; Carroll v. Ryan [2003] 1 I.R. 309, A.A. v. The Medical Council [2003] 4 IR 302; Akram v. Minister for Justice and others [2004] 1 I.R. 452 and Law Society of Ireland v. Malocco [2005] IESC 5.

However, the courts have repeatedly made clear that the rule in Henderson v. Henderson should not be blindly or invariably applied, particularly if there are special circumstances in the case which would suggest that the imposition of the limitation would be either unfair, excessive or disproportionate. As Hardiman J. stated in A.A. v. The Medical Council and the Attorney General [2003] 4 I.R. 302 at p.317:-

      “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. This point has a particular resonance in terms of article 6 of the European Convention on Human Rights and Fundamental Freedoms 1950. In Ashingdane v. United Kingdom (1985) 7 E.H.R.R. 528 at p. 546, the European Court of Human Rights said:-

      ‘the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access, 'by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals’."

In the context of the present application, I am of the view that the rule in Henderson v. Henderson should not be rigidly applied. My main reason for so holding is that its application would do no more than provide a partial defence to the respondents herein, because only such systemic delay which had occurred up to the date of the hearing before O’Caoimh J. in the High Court in the first judicial review proceedings could have been invoked before that court in July, 2003. In the present case the applicant complains that the relevant period of systemic delay runs from the commencement of the first set of judicial review proceedings until the disposal of same by judgment of this Court delivered on 7th March, 2006. Indeed, his principal complaint relates to the period of delay in processing the appeal from the High Court to this Court. Thus the main period of allegedly blameworthy systemic delay falls outside any period of time which the High Court had to consider. While counsel for the respondent has argued that no reference to any alleged systemic delay was made when the application was brought to lodge a late Notice of Cross-Appeal in the first judicial review proceedings, I think that complaint also runs up against the same difficulty, that it was not the subject matter of any adjudication in the High Court or in this Court either.

As part of the same argument counsel on behalf of the respondent also argues that the present proceedings are an abuse of process and nothing more than a collateral attack on the earlier judgment of this Court which refused to grant relief on grounds of delay. Counsel suggested that the present proceedings amount to no more than an invitation to the Court to repeat the exercise conducted by both the High Court and Supreme Court in the first set of proceedings and in support invoked the dramatic terminology of Halsbury L.C. who stated in Reichel v. McGrath [1889] 14 A.C. 665 (at p.668):-

      “…it would be a scandal to the administration of justice if, the same question having (been) disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.”
I have with some reservations concluded that the complaint of abuse of process cannot be sustained. Firstly, the present application relates mainly to systemic delay which is an issue the subject matter of newly emerging jurisprudence in this jurisdiction. Secondly, the main element of alleged systemic delay relates to a period subsequent to the hearing of the first judicial review proceedings and thus the issue could not sensibly have been either fully or comprehensively dealt with by O’Caoimh J in the High Court. While on one view the present application may be seen as a ‘last ditch’ effort to stop a trial from proceeding, I believe the applicant has gone far enough to demonstrate that a new point has now arisen which requires the adjudication of this Court. Had it been a pure stalling exercise by the applicant this objection would have to be upheld because quite clearly delay occasioned, or still worse, engineered by an applicant can not be invoked by him in support of an application for prohibition nor can it be laid at the door of the State under any guise.

While in no way forsaking the valuable jurisprudence represented by the rule in Henderson v Henderson or that which relates to abuse of process, I would prefer to resolve this case by reference to the wider principles concerning the effects of delay.

SUBMISSIONS OF THE PARTIES IN THE CURRENT APPEAL

In the course of arguing the applicant’s case before this Court, Mr. Hugh Hartnett, Senior Counsel, adopted the position that the systemic delay which followed the inception of the first judicial review proceedings in 1999 until their conclusion in March, 2006, was both excessive and blameworthy and infringed the applicant’s constitutional right to a trial with reasonable expedition within Article 38.1 of the Constitution and article 6 of the European Convention on Human Rights. He argued that there had been a failure in the court system for which the State must accept responsibility. There was a particular onus on the State in this case to ensure that the system disposed expeditiously of the first judicial review proceedings having regard to the long delay which preceded the commencement of those proceedings in 1999.

In response, counsel for the respondent argued, firstly, that there had been no systemic delay in so far as the first judicial review proceedings were concerned. He accepted that some untoward delay occurred when difficulties arose in taking up the transcript of the hearing in the High Court and in certifying the case as ready for hearing in the Supreme Court. Any delay thereafter had to be seen in the context that the Supreme Court had a substantial case load and that the present application had to take its place among other important and urgent cases awaiting a hearing before this Court. No application had been made by or on behalf of the applicant to either strike out the appeal or to seek an early date for hearing from the Supreme Court. The applicant had not asserted the right to an early trial, a factor which, as indicated by the U.S. Supreme Court in Barker v Wingo 407 U.S. 514 (1972) was always of relevance in this context. Counsel further submitted that the applicant had not pointed to any period of pre-trial incarceration, nor had he led any medical evidence to support a mere assertion of increased stress and anxiety, nor had he put in the balance any other factor of the type identified by this Court in P.M. v. D.P.P. [2006] 3 I.R. 172 such as might entitle him to an Order of Prohibition in respect of prosecutorial delay or systemic delay.

PROSECUTORIAL DELAY

Article 38.1 of the Constitution provides:-

“No person shall be tried on any criminal charge save in due course of law”

It is well established in Irish law that the right thus guaranteed includes a right to a trial with reasonable expedition.

As Finlay C.J. stated in DPP v. Byrne [1994] 2 I.R.236 (at p.244):-

      “In some constitutional structures the right to a speedy trial or to a trial with reasonable expedition is separately provided for from the right to a trial in due course of law or by due process of law. The most obvious and well known example of that is the existence in the Constitution of the United States of America of the Sixth Amendment and Fourteenth Amendment. The Sixth Amendment provides the right ‘to a speedy and public trial, by an impartial jury’ and the Fourteenth Amendment provides ‘nor shall any State deprive any person of life, liberty or property without due process of law’. As is clearly implied in The State (Healy) v. Donoghue [1976] I.R. 325 by this Court as well as by the High Court, the importance of the protection of the right to a trial with reasonable expedition is not in any way lessened by the fact that the constitutional origin of it in our law arose from the general provision for a trial in due course of law rather than from a separate express provision of a right to a speedy trial.”
Finlay C.J. went on to consider two circumstances in which a lengthy lapse of time could create a real or probable risk that an accused would be the subject of an unfair trial. In one instance an applicant might be in a position to establish on facts the real risk of a particular prejudice which would render the trial unfair. In the second instance, the excessive or inordinate length of time might of itself raise an inference that the risk of an unfair trial arose as a reality.

Finlay C.J. was careful to acknowledge that the type of delay which may be involved in this particular form of constitutional right cannot be assessed with any measure of certainty or precision. In this context he identified by way of example that the delay which could be tolerated for an ordinary street crime would be considerably less than for a serious and complex conspiracy charge. Further, a delay which was indicative of an improper motive or gross carelessness on the part of the prosecuting authorities might be seen as qualitatively different from the mere failure to render to a person a constitutional right to a trial with reasonable expedition. As he stated, however, at p.246:-

      “The reasonableness or unreasonableness of a delay which by itself and without any other consequence is an infringement of a constitutional right is much more difficult of definition.”
Significantly in that case, where there had been an unexplained delay in prosecuting the offence, Finlay C.J. did not distinguish between the activity of the members of the Garda Siochana, as the agent of the prosecuting authority, on the one hand and the activities of other State servants engaged in the administration of the court service on the other in circumstances where the combined effect of those activities or the effect of one or other of them constituted an infringement of the accused’s constitutional rights. It should be noted that, while Finlay C.J. was in a minority as to the result in that case, his statement of principle was expressly approved of by Blayney J. in speaking for the majority of this Court.

The underlying reasons for upholding the right to a trial with reasonable expedition were discussed by Keane C.J. in P.M. v. Malone [2002] 2 I.R.560. At p.572 he stated:-

      “It must be acknowledged that a reading of some of the Irish authorities in this area might suggest that the right to a reasonably expeditious trial is recognised and protected by the law solely in order to ensure the fairness of the trial process itself. As it is sometimes put, it is not the delay, but the effects of the delay, which are crucial. Witnesses may die or disappear or, where they are available, their memories of events in the past may be clouded and unreliable. The defendant may experience difficulty in establishing an alibi because of vagueness and imprecision as to when events are said to have occurred.

      That such consequences may flow from a failure, however caused, to bring the accused promptly to trial is obvious. But it does not follow that impairment of his ability to defend himself is a necessary precondition to the successful invocation by him of the discrete constitutional right to a speedy trial. Where there has been significant and culpable delay to which he has not contributed in any way, the result may be either actual prejudice (the loss of otherwise available evidence) or presumptive prejudice (the difficulties necessarily inherent in giving evidence after a lengthy period) which may affect his ability to defend himself and, hence, fatally compromise the fairness of the trial. That, however, may not be the only consequence for the accused of significant and culpable delay to which he has not contributed.

      The first major consequence may be the loss of his liberty while the trial is pending. That does not arise in this case and, where it does arise, is capable of remedy through the machinery of bail and habeas corpus . The second major consequence is the anxiety and concern of the accused resulting from a significant delay in his being brought to trial.

      There are thus three interests of defendants which the right to a speedy trial is intended to protect, the third being the possibility that the defence will be impaired. These were identified by Powell J. in his opinion in the United States Supreme Court decision of Barker v. Wingo (1972) 407 U.S. 514 in a passage which was approved of in this court in Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236, having previously been endorsed by the Judicial Committee of the Privy Council in Bell v. D.P.P. [1985] A.C. 937 and by Murphy J. in The State (O'Connell) v. Fawsitt [1986] I.R. 362.

This judgment was delivered subsequent to a decision of the High Court (Geoghegan J.) in P.P. v. DPP [2000] 1 I.R.403, a case in which Geoghegan J. found (at p.410) that a garda investigation had been conducted “in a lackadaisical and slovenly fashion” and held that the trial should be prohibited. However, in P.M. v. D.P.P. [2006] 3 I.R.172, Geoghegan J. made clear that his judgment was not to be taken as meaning that once some blameworthy prosecutorial delay on the part of the prosecution had been demonstrated it gave rise to an automatic right to an injunction prohibiting a trial where no prejudice of any kind had been established. He also stated, prophetically as it later transpired, that when considering stress and anxiety in the context of the balancing exercise referred to by Keane C.J., he “did not think that the courts should normally concern themselves with the degree of anxiety in a quantitive sense requiring proof thereof.” (at p. 176)

The unanimous decision of this Court in P.M. v. D.P.P. [2006] 3 I.R.172 was to reiterate, as this Court had held in P.M. v Malone [2002] 2 I.R. 560, that a balancing exercise must be adopted by the court in determining whether blameworthy prosecutorial delay should result in an order of prohibition. The jurisdiction in this respect is triggered by the fact, if it can be established, that there has been blameworthy prosecutorial delay. At p.185 of the judgment (with which Murray C.J., Denham J., Hardiman J. and Geoghegan J. agreed) I stated:-

      “I believe that the balancing exercise referred to by Keane C.J. in P.M. v Malone [2002] 2 I.R. 560 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.”
Under the current state of Irish law therefore, the following principles appear to have been established in relation to prosecutorial delay:-

(a) Inordinate, blameworthy or unexplained prosecutorial delay may breach an applicant’s constitutional entitlement to a trial with reasonable expedition

(b) Prosecutorial delay of this nature may be of such a degree that a court will presume prejudice and uphold the right to an expeditious trial by directing prohibition

(c) Where there is a period of significant (as distinct from minor) blameworthy prosecutorial delay less than that envisaged at (b), is demonstrated, the court will engage in a balancing exercise between the community’s entitlement to see crimes prosecuted and the applicant’s right to an expeditious trial, but will not direct prohibition unless one or more of the elements referred to in P.M. v Malone [2002] 2 I.R. 560 and P.M. v D.P.P. [2006] 3 I.R. 172 are demonstrated.

(d) Actual prejudice caused by delay which is such as to preclude a fair trial will always entitle an applicant to prohibition.

In laying down principles in the various Irish cases on this issue the courts in this jurisdiction have all borrowed heavily from the seminal decision on prosecutorial delay delivered by the U.S. Supreme Court in Barker v Wingo 407 U.S. 514 (1972). Those principles were laid down by the U.S. Supreme Court against a constitutional guarantee of a ‘speedy’ trial which I do not see as being materially different from the guarantee contained at Article 38.1 of our own Constitution. The decision in Barker v Wingo has been cited with approval by Irish courts in virtually every case on this topic. The great value of this case is its simplicity and the schematic approach which it offers when cases relating to prosecutorial delay are assessed. I believe it can be seen as the paradigm model for assessing individual cases while applying the same principles as are applied to cases under Irish law.

In Barker v Wingo the U.S. Supreme Court emphasised that in considering the right to a speedy trial there could be no inflexible rule and that every case must be met on an ad hoc basis in which the conduct of the prosecution and that of the defendant are weighed. An inquiry is triggered when the delay is prima facie excessive. The court in that case identified four factors which should be assessed in determining whether a particular defendant has been deprived of his constitutional right to a speedy trial guaranteed by the Sixth Amendment to the U.S. Constitution. They are:-

      (a) The length of the delay

      Until there is a delay which is presumptively prejudicial, there is no necessity for an inquiry into the other factors that go into the balance. The length of delay which will demand an inquiry is necessarily dependent upon the peculiar circumstances of the case. Thus the delay which can be tolerated for an ordinary street crime is considerably less than for a complex conspiracy case

      (a) Reasons for delay

      Different weights should be assigned to different reasons. A deliberate prosecution attempt to delay the trial in order to hamper the defence should weigh heavily against the prosecution; more neutral reasons such as negligence or overcrowded courtrooms might weigh less heavily but must nonetheless be considered, given that the ultimate responsibility for such circumstances rests with the State rather than the defendant. A valid reason, such as a missing witness, might serve to justify delay.

      (c) Role of the applicant

      An applicant’s assertion of his right to a speedy trial is entitled to strong evidentiary weight in determining whether he is being deprived of his constitutional right; a failure to assert the right may make it more difficult for an applicant to prove that he wanted or was denied a speedy trial. In this context the court noted that delay may sometimes operate to the advantage of a defendant.

      (c) Prejudice

      The Court identified three interests of defendants which the speedy trial right was designed to protect: (i) the prevention of oppressive pre-trial incarceration; (ii) the reduction of anxiety and concern of the accused and (iii) most importantly, the limitation of the possibility that the defence will be impaired.

This template or framework is to my mind one which judges can comfortably operate. It focuses at the outset on the question as to whether a particular period of delay is such as to give rise to an inference that it is excessive having regard to the nature and gravity of the proceedings in question. If so, the court will proceed to inquire as to the reasons for delay and the respective contributions of the parties thereto with a view to establishing if any of the applicant’s rights which the constitutional guarantee is designed to protect have been impaired. This approach reflects the approach adopted by the European Court of Human Rights in two cases to which I will later refer.

The task of assessing cases on the topic of prosecutorial delay since P.M. v Malone [2002] 2 I.R. 560 and P.M. v D.P.P. [2006] 2 ILRM 361 without such a template or framework for doing so has in my view led on occasions to disproportionate emphasis being placed on some of the lesser factors which go in to the balancing exercise, notably with regard to the issue of ‘stress and anxiety’ and how the same should be measured or assessed. In at least one case, O’H v D.P.P. [2007] I.E.S.C. 12, different views were expressed by members of this Court as to whether there should be medical evidence in support of assertions of increased stress and anxiety by an applicant or could same be inferred from the particular facts of the case. As the observations of Geoghegan J. on this topic make clear, there is something inherently unsatisfactory in an approach to these cases whereby so much attention is focused on supposed distinctions between quantitive and qualitative anxiety. I am not saying stress and anxiety may not be a matter of importance in some cases but surely wider issues should predominate any debate about prosecutorial delay. It suggests to me that the approach to these cases has become somewhat skewed because of the absence of an appropriate framework for evaluating the issues. I believe the template offered by Barker v Wingo is highly suitable for determining issues about prosecutorial delay and should be adopted directly rather than inferentially as has been the case to date. I do not believe that this would involve the abandonment or dilution of any of the principles which have evolved on this topic since D.P.P. v Byrne [1994] 2 I. R. 236.

SYSTEMIC DELAY

Should systemic delay be seen as qualitatively different from prosecutorial delay? From an applicant’s point of view, assuming he has not occasioned or contributed to the delay arising since the inception of the criminal process, I believe that the distinction is one without a difference. I believe that systemic delay is to be governed by the same principles which govern prosecutorial delay, not least because both forms of delay affect an accused in the same way. Such a view is consistent with that taken in Barker v Wingo and in this jurisdiction by Finlay C.J. in DPP v. Byrne [1994] 2 I.R. 236.

Systemic delay caused by failures of the criminal justice system may take various forms. There may be a failure by the State to provide an adequate number of judges, back-up staff, court room facilities or the other assistance which is required to enable the criminal process move forward with reasonable expedition. There may be failures by judges to give decisions or judgments within an appropriate time. The decisions of the European Court of Human Rights make it clear that a State is obliged to organise its legal system so as to allow its courts to comply with the reasonable time requirement of article 6, a requirement and obligation which does not cease to exist simply because domestic law requires the parties themselves to take initiatives or steps to progress proceedings.

While there was no discussion about the point in this appeal, it also strikes me that, where systemic delay other than prosecutorial delay is alleged by an applicant, the State should be afforded an opportunity of being heard given that the Director of Public Prosecutions has no hand, act or part in the provision of judges, courtroom facilities or back up staff and thus may not be in a position in a given case to explain or justify a breakdown or failure in one or more of these areas. A failure of a court to sit or the absence of facilities at a particular location or at a particular time may however be amenable to an explanation which would strongly suggest that prohibition should not be ordered. Thus any party, be it the State or some emanation thereof, accused of blameworthy delay such as might warrant stopping a trial, is entitled to be heard on any such application. Basic requirements of fairness and the rights of the community in the prosecution of criminal offences demand no less.

APPLYING THE TEST

The Court must apply the test while keeping certain considerations in mind. On the one hand, the Court must remember that degrees of dilatoriness which may have been acceptable in the past may no longer be tolerated since the European Convention on Human Rights Act, 2003 gave effect in this jurisdiction to the provisions of the Convention. This is a theme more fully adumbrated upon by Hardiman J. with regard to civil litigation in Gilroy v Flynn [2005] 1 ILRM 290 and more recently by this Court in the context of criminal litigation in Noonan (aka Hoban) v D.P.P. [2007] IESC 34. Both the Constitutional right under Article 38.1 and the rights derived under Article 6 of the Convention to a trial with reasonable expedition must be vindicated by being given real effect.

In the context of prohibition this is not to say that an Irish court must more readily resort to prohibition, whatever about other remedies, than it has done already when vindicating rights under Article 38.1. Under our jurisprudence, as noted by Denham J in DC v D.P.P. [2006] 1 ILRM 348, prohibition must always be seen as a remedy to be granted only in exceptional circumstances. Any court called upon to prohibit a trial must give due weight to the gravity and seriousness of the offence charged when exercising this jurisdiction. It is all too easy to lose sight of the fact that there are victims of crime whose interests must not be swept aside in this exercise. The court must therefore analyse the causes of delay with great care, weighing up and balancing the role of both the prosecution and the applicant and their respective contributions to delay. Delays in the court system, to which an applicant has not contributed, may not be seen as delays which have no impact on the capacity of the prosecution to maintain a prosecution.

Prohibition is nonetheless to my mind a remedy which, in the absence of actual prejudice, should only be granted where a serious breach of either the applicant’s rights under Article 38.1 of the Constitution or article 6(1) of the European Convention on Human Rights is established. I would accept that a distinction may require to be drawn between breaches of the right which give rise to an entitlement to obtain prohibition and lesser transgressions which may conceivably give rise to some other remedy, such as one in damages. However, any entitlement to a remedy in damages for breach of a constitutional right to an expeditious trial is a matter that will require very full and careful consideration in an appropriate case. This is not such a case. The Court is here concerned only with a claim for prohibition.

Before an entitlement to prohibition arises it seems to me that a number of requirements must be met. Firstly, an applicant must go further than merely point to a lengthy lapse of time from the inception of criminal proceedings until the date when prohibition is sought. He must demonstrate that the prosecutorial and/or systemic delay complained of is well outside the norm for the particular proceedings and procedures involved. Not every delay is significant and not every delay warrants the description of being blameworthy to such a degree as to trigger an inquiry by the court under P.M. v D.P.P. or Barker v Wingo. In my view an applicant should adduce and place before the court some evidence of what the norm is in terms of time taken for the particular process. This is not to impose an unrealistic obstacle in the way of an applicant. Information as to the average length of time it takes for various forms of proceedings to get on for hearing both in the High Court and in this Court is readily available from the Courts Service.

Where the complaint is of delay in processing judicial review proceedings, some further important considerations arise. An applicant who seeks leave to bring judicial review need do no more than establish he has an arguable case. An applicant meeting this low threshold test will invariably also obtain an injunction restraining his trial until the proceedings are disposed of. This is of considerable benefit to an applicant because it denies pro tem the community’s right to a trial. The State case may also suffer in a variety of ways from the attendant delay in completing the judicial review. The stay on trial may also be seen as the equivalent of an interlocutory injunction in civil proceedings though shorn in the prohibition context of any requirement to give an undertaking as to damages. It is a brake, full stop. It follows from these considerations that an applicant must prosecute his judicial review application with all possible expedition and ensure that any delay arising is not due to default or inaction on his part.

Even in those cases where an application is grounded upon a simple failure of the criminal process to move in a sufficiently expeditious manner, it would be wrong in my view to invariably place the entire responsibility on the prosecution. While the primary responsibility rests with the prosecution there may well be steps which the applicant himself may take and a failure to do so should be a factor which the court can also take into account. Further, where an applicant has made admissions in the course of an investigation the court should be entitled to have regard to that fact. That is not to say that the admissions may not be contested or ruled out at trial, but in the context of a quite different application on the civil side an uncontested admission is a factor which must go in to the balancing exercise. This point was well made by Denham J. in B. V. D.P.P. [1997] 3 I.R. 140 and, as has been pointed out in another judgment of this Court in S.A. v. D.P.P. [2007] IESC 43, it would be “extraordinary” to prohibit a trial in circumstances where the defendant admits to behaviour of a criminal nature.

EUROPEAN CONVENTION ON HUMAN RIGHTS

Two decisions of the European Court of Human Rights are of particular relevance in the consideration of the present application, being, respectively McMullen v. Ireland [2004] E/C.H.R. 404 (29 July, 2004]and Barry v. Ireland [2005] E.C.H.R. 865 (15 December, 2005)

While the case of McMullen involved negligence proceedings and not criminal proceedings there is a statement of relevance at par. 33 of the judgment where the court stated:-

      “The Court reiterates that the reasonableness of the length of the proceedings must be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court’s case- law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what is at stake for the applicant in the litigation (see among other authorities, Comingersoll v. Portugal [GC], no. 35382/97, §19, ECHR 2000-IV, and Horvat v. Croatia, no. 51585/99, §52, ECHR 2001-VIII).”
Having considered the conduct of the applicant in that case and having concluded that the conduct of the applicant contributed in no small part to the delay in the proceedings, the court held that such delay did not explain the overall length of the proceedings and proceeded to examine the conduct of the authorities. In that regard the court found as follows:-
      “38. The Court recalls that a State is obliged to organise its legal system so as to allow its courts to comply with the reasonable time requirement of Article 6 (Süβmann v. Germany, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p.1174, §55). It has held on a number of occasions that a principle of domestic law or practice that the parties to civil proceedings are required to take the initiative with regard to the progress of the proceedings does not dispense the State from complying with the requirement to deal with cases in a reasonable time (for example Mitchell and Holloway v. the United Kingdom, no. 44808/98, §56, 17 December 2002). If a State lets proceedings continue beyond the “reasonable time” prescribed by Article 6 of the Convention without doing anything to advance them, it will be considered responsible for the resultant delay (for example, Price and Lowe v. the United Kingdom, nos. 43185/98 and 43186/98, §23, 29 July 2003).

      39. In this regard, the Court observes that a number of specific and lengthy delays in the proceedings are attributable to the domestic authorities: a period of more than one year between the last day of the High Court hearings and the delivery of its judgment (23 June 1992 - 13 July 1993); a period of almost two years between the applicant’s confirmation that all appeal documents had been filed and the first hearing date for the appeal (25 July 1995 – 21 March 1997); and a period of six months for the Supreme Court to reconstitute and fix a hearing date for the relevant appeal (11 June – 16 September 1997). No explanation for these specific delays has been offered by the Government.

      40. In such circumstances, and having regard to the criteria laid down in its case- law, the court finds that the proceedings in the present case were not dealt with within a “reasonable time” as required by Article 6 § 1 of the Convention and that there has, therefore, been a violation of that provision.”

In that particular case the court, by way of remedy, directed the State to pay to the applicant a sum in damages. The case however demonstrates that the method adopted by the Court to assess delay, notwithstanding its particular concentration of the role of the State in cases of prosecutorial or systemic delay, is similar to that indicated in Barker v Wingo 407 U.S. 514 (1972).

Perhaps more directly in point was the decision of the court in Barry v. Ireland, a case in which the applicant was arrested in October, 1997 in respect of an alleged sexual assault of a former patient on a date between October, 1992 and November, 1992. A list of charges concerning 43 complainants was read to him later in the police station where he was formally charged with 237 offences of a sexual nature. He was granted bail, though his passport was impounded. In November, 1997 the applicant unsuccessfully applied for a copy of the statement grounding the application for his arrest warrant. In the same month he was given leave to apply for judicial review for an order prohibiting his prosecution on three grounds, including “gross and inexcusable delay”. A stay on prosecution was granted pending the determination of the judicial review proceedings. In February, 2003 the High Court delivered judgment refusing to grant prohibition of the prosecution, finding that both parties were at fault for the delay. While finding that the respondents had been entirely to blame for an adjournment of the proceedings in February, 2000, the court was satisfied that the default had not caused any significant delay because the proceedings had to be adjourned in any event to await the judgment in a related case. The applicant appealed, and in October, 2003 the Supreme Court heard the appeal and rejected same.

The European Court of Human Rights concluded there were several periods of excessive delay which were partially or completely attributable to the authorities. In particular the court found (at para. 44) that the period of fourteen months between reserving and delivering the judgment of the High Court was “clearly unreasonably long” having regard to the fact that the case had already been substantially delayed, nor was there justification for the thirteen month period between the final Supreme Court decision and the reopening of the prosecution.

In holding there had been a violation of Article 6(1) of the Convention, the court further held there had been a violation of article 13 of the Convention (which guarantees an effective remedy before a national authority for an alleged breach of the requirement under article 6 to hear a case within a reasonable time) and awarded to the applicant a sum of €8,000 in respect of non-pecuniary damage.

At para. 36 of the judgment the court stated:-

      “The court reiterates that the reasonableness of the length of the 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 (see, among many other authorities, Pelissier and Sassi v France [GC], no. 25444/94, ECHR 1999-11). On the latter point, what is at stake for the applicant in the litigation has to be taken into account (Pailot v. France, judgment of 22 April, 1998, Reports of Judgments and Decisions 1998 – 11, / 61)”.
This decision conveys how the court approaches the issue of delay in the context of criminal proceedings. It is an approach similar to that in civil cases. It is perhaps less helpful in determining how ‘reasonableness’ in the context of delay is to be measured. Is it simply a matter of looking at the period of time involved and weighing up the explanations and excuses offered by both sides? Greater assistance may be derived from an evaluation of time which is related to and contrasted with the normal timeframe for the particular type of proceedings either generally in Convention States or in the State concerned. Counsel for the applicant has not suggested that the time required to process a complaint from inception to date of hearing before the European Court of Human Rights itself provides any useful illustration or example in this regard.

However, taking on board everything said by the court in these two cases, the fact remains, as noted by Fennelly J. in T.H. v. D.P.P. [2006] 3 I.R.520, that nothing in the Barry decision of the European Court of Human Rights should be taken as holding that a prosecution must be stopped in circumstances where the breach of a right to an expeditious trial is established. As Fennelly J. stated (at p. 540 of his judgment) in T.H. :-

      “It is important to clear up any misunderstanding concerning the import of such decisions of the Court of Human Rights. The court does not and did not, in that case (i.e. the Barry case), hold that the prosecution had to be stopped. It would be most surprising if a judgment of that court holding that the prosecuting authorities were ‘partially or completely responsible’ for certain periods of delay had the automatic consequence that a prosecution had to be halted. Such a conclusion would, in any legal system, call for some consideration of the public interest in the prosecution of crime. We know, of course, from other parts of the caselaw of the court that it does recognise the public interest in prosecuting crime (see Kostovski v. Netherlands (1989) 12 E.H.R.R. 434 and Doorsen v. Netherlands (1996) 22 E.H.R.R. 330). Thus, the decision of the court leads to a monetary award. It has no consequence for the pending prosecution. In brief, the decision in Barry v. Ireland (App No. 18273/04) (Unreported, European Court of Human Rights, 15th December, 2005) adds nothing to the applicant's claim to have his trial stopped. The applicant has not, at any stage, advanced a claim for damages as part of the relief sought in these proceedings. As in almost all such cases, the principal objective has been to seek to prevent his trial from proceeding.”
I entirely agree with these views and can not usefully add anything further to them other than to record that the European Court of Human Rights took special circumstances very much into account in the Barry case, including the fact that the applicant was in his eighties and had to bear the weight of the charges for a period of ten years during which he was debarred from carrying on his profession as a medical practitioner.

PREJUDICE

Having regard to the public interest in seeing serious crime prosecuted, the onus on an applicant to engage in a specific way with the particular facts, particularly where prejudice is alleged, cannot be overstated. References to the community’s right to prosecute are not mere shibboleths to which nominal lip service only must be paid. That right is an essential element in a properly functioning criminal justice system. Vague allegations of prejudice fall well short of what an applicant must demonstrate if he is to secure prohibition.

In the first judicial review proceedings herein, McFarlane v. D.P.P. [2007] 1 I.R.134, Hardiman J. addressed the topic of prejudice where he stated the following (at p.p.142/143):-

      “The applicant further contends that the delay, or events happening during the period of delay, have caused him irreparable prejudice in his ability to defend himself, so that there is a real and serious of an unfair trial. In part this is put forward as a general proposition and in part more specifically. Heavy reliance is placed on the fact that the three items on which fingerprints were allegedly found are no longer in possession of the garda.

      In so far as this ground is urged on the basis of general prejudice, I am unimpressed by it. The whole of the case in this regard is based on a single sentence from the grounding affidavit of Mr. McGuill, solicitor for the applicant, which is quoted above. That is no more than a general statement of the effect of a lapse of time. It makes no attempt whatever to engage with the actual circumstances of the applicant himself at the relevant time. On 25th September, 1983 he had undoubtedly escaped from lawful custody in Northern Ireland. The next uncontroversial statement that can be made about his whereabouts is that he was in the Netherlands in January, 1986 in possession of a stolen or forged Irish passport. The applicant has said nothing about his whereabouts during any part of that time and, vitally, has not asserted, or caused his solicitor to assert, either how he spent the time, or that he cannot recall where he was, during the period of Mr. Tidey’s captivity in late November and up to the 16th December, 1983. A remote, fanciful or purely theoretical form of prejudice is plainly not sufficient to entitle him to relief. An applicant in this position must address if it is possible the actual specific facts of his case and this present applicant has singularly failed to do (sic).”

With these various considerations in mind, I now turn to a consideration of the elements of delay alleged to have occurred in the first judicial review proceedings herein.

ANALYSIS OF TIME ELEMENT IN FIRST JUDICIAL REVIEW PROCEEDINGS

As appears from the affidavit sworn by James McGuill, the solicitor for the applicant herein, leave to bring the present judicial review proceedings was granted on 1st November, 1999. At all relevant times, the applicant had bail, but was obliged to sign on once a month at Dundalk garda station, a distance of 160 km. from his home in Belfast. Mr McGuill deposes that the applicant has been required to attend on each occasion that his case was listed in the Special Criminal Court. His first appearance was on 7th January, 1998. Since then he appeared on upwards of forty occasions for the mention of his case. This involved the applicant in a 320 km. round trip from his home in Belfast to the Special Criminal Court sitting in Green Street in Dublin. Needless to remark, none of these inconveniences from late 1999 onwards would have arisen but for the fact that the applicant himself secured a stay of his trial.

Following the granting of leave, the usual Notice of Motion thereafter issued and was made returnable to the 29th November, 1999. On the return date the respondents sought time and the case was again listed for mention in December, 1999, January, 2000, February, 2000 and March, 2000. Thereafter a Statement of Opposition was delivered on 5th April, 2000. This was accompanied by three affidavits, namely those of Dermot Jennings, Maurice Boyle and John McElliott. In the light of the contents of the Statement of Opposition and affidavits, the applicant sought voluntary discovery from the respondents by letter of 15th May, 2000. The respondents did not consent to make voluntary discovery and thus a motion for that purpose was brought before the Master of the High Court returnable for the 13th October, 2000. This motion was adjourned by consent until January of the following year when, due to a mutual misunderstanding between the parties, there was no appearance by either party in court and the Motion for Discovery was struck out. A fresh motion was issued on behalf of the applicant and made returnable before the Master on 16th November, 2001. At the request of the respondents, this application was adjourned until 1st March, 2002, but on 8th February, 2002 an Affidavit of Discovery was delivered sworn by Mr. Angus Dwane, a solicitor in the respondent’s office. The motion for discovery, which had been adjourned to 1st March, 2002, was thus struck out by consent. The respondent then applied to the High Court on 11th March, 2002 for an order re-entering the judicial review proceedings with a view to securing a place on the list to fix dates.

In the meantime, the applicant’s advisors took the view that the discovery made in February, 2002 was inadequate and that further discovery was necessary. A further motion, seeking additional discovery, was brought returnable for 14th May, 2002. The Master of the High Court refused the relief sought in that motion, whereupon the applicant appealed the Master’s refusal to the High Court which determined the appeal on 22nd July, 2002. The appeal was unsuccessful. Thereafter, the judicial review application was assigned a hearing date of 14th March, 2003. Due to the unavailability of a court on that day the case was put back into the list to fix dates with priority. The application was then heard on 11th July, 2003 and judgment was promptly delivered by O’Caoimh J. on 18th July, 2003.

I am satisfied that no blameworthy delay, either in the sense of prosecutorial delay or systemic delay, can be attributed to the respondents, or indeed to the State, in respect of this period. Insofar as it is suggested that there was delay in discovery, one must begin by saying that discovery invariably takes time if it is to be done properly. It is not a relief which the courts invariably grant in judicial review and the respondent, who is in any event required to make disclosure of all relevant documents, need not further make discovery unless so directed by the court. Further, as Quirke J. found, there was fault of some degree on both sides in this regard. While the affidavit of Mr. McGuill places a great deal of emphasis on the delay of one year and nine months from 15th May, 2000 (when a request for voluntary discovery was first made) and 8th February, 2002 (when an Affidavit of Discovery was filed), it appears to be the case that the applicant’s discovery motion was struck out in January, 2001 as both parties were confused about the date. The applicant did nothing about re-entering the motion for four months and a fresh motion was not brought for some eight months after the first discovery motion had been struck out. The affidavit ultimately sworn by Mr. Angus Dwane in February, 2002, listed some 93 documents in the schedule and was clearly the result of considerable effort on the part of the respondent. The further delays in 2002, if they can be so characterised, arose because the applicant’s advisors challenged the adequacy of the discovery made, appealed the Master’s refusal to the High Court, where the same was determined in the respondent’s favour on 22nd July, 2002. The preponderance of delay during this period must, in my view, be laid at the door of the applicant who had carriage of the proceedings and the primary responsibility for progressing matters.

Despite allegations of systemic delay, no evidence of what might be an appropriate period for this process was led by the applicant. In those circumstances both counsel for the respondent and the Court have had to do the best they can to determine if the system was in any way at fault for delay. This evidential shortfall was commented upon by Quirke J. in the judgment he delivered in the High Court. I can only base my opinion therefore on my own personal experience as a High Court judge who dealt with judicial review matters from time to time. I do not regard the listing period or the one adjournment in March, 2003, due to the unavailability of a judge or court on that day, as proof of systemic delay. Quite obviously, very different considerations might arise if this, or any other case, were adjourned on multiple occasions due to non-availability of judges. Ultimately, the only basis for alleging there was any form of blameworthy delay rests on a contrast between the length of time taken by the first judicial review proceedings and the present application. To this totally unscientific argument it may simply be said that the present application did not involve discovery which clearly emerges as the major contributor to delay in the first proceedings.

Perhaps the most important period of time is that which ensued following the hearing in the High Court. The requisite Notice of Appeal was lodged on 19th August, 2003. It is clear, and is conceded by Mr. Padraic Taylor, solicitor of the Office of the Chief Prosecution Solicitor, that there were difficulties in obtaining an approved transcript of the judgment of Mr. Justice O’Caoimh in order to complete the Books of Appeal. He deposes in his affidavit to e-mails passing between his office and that of the Chief Registrar of the High Court referring to the fact that the transcript had not been approved. Ultimately the transcript of the judgment was approved in September or October, 2004. The Certificate of Readiness was ultimately furnished on behalf of the respondent on 27th January, 2005. It is frankly conceded on behalf of the respondent that nothing on his file can be identified which would explain the delay from the time the Books of Appeal were lodged and the time the Certificate of Readiness was lodged.

No evidence of any sort was led as to reasonableness or otherwise of the period of time which elapsed from that point until the appeal was heard by this Court. The State was not a party to these proceedings and had no opportunity of being heard on the only real portion of delay attributed to it. Counsel for the applicant has, without more, simply acknowledged the huge workload which attends this Court and asserted that the State was in default. I do not believe any kind of claim has been made out, notably when one factors in the role of the applicant in this context. Significantly, and as deposed to by Mr. Taylor in his affidavit sworn on 13th July, 2006, the applicant did not at any stage during the judicial review proceedings either in the High Court or Supreme Court make any application for priority. Nor did he, at any stage, apply to the Supreme Court to strike out the appeal of the respondent on grounds of any suggested failure to prosecute same expeditiously. The applicant did not apply to the Supreme Court for leave to bring a Cross Appeal until 2nd February, 2006, some two weeks before the scheduled hearing came before the Supreme Court.

CONCLUSION

Delay may be seen as the enemy of justice, both from the point of view of the community whose interest in having serious crimes prosecuted is put in jeopardy by prosecutorial or systemic delay and, perhaps more particularly, from the point of view of an accused person.

This is an unusual case with an unusual history, even if most of the issues arising on delay are familiar to the Court. However, what at first glance in this case seems to be an enormous delay, whether calculated either from the date of the original alleged offences or from the inception of criminal proceedings, transpires on closer examination to be amenable to a variety of very simple explanations for its different component parts. What is beyond dispute is the fact that, in the aftermath of the applicant’s arrest and interrogation in January, 1998, this case was ready for trial the following year and that trial would have then proceeded but for the fact that the applicant brought eleventh hour judicial review proceedings. This Court has already held that all complaints by the applicant of pre-charge delay are groundless (McFarlane v. D.P.P. [2007] 1 I.R. 134). I am satisfied that the only blameworthy delay arising in this case in 1998 and 1999 is that of the applicant who failed to move promptly with his judicial review application.

As for the first judicial review proceedings I have already made clear my view that no blameworthy delay can be said to arise from their inception until the judgment of the High Court was delivered. The sole period of delay giving rise to any difficulty in my view is that which followed delivery of the judgment of the High Court. The fact that delay was encountered in taking up the transcript explains only part of that delay. The delay may not have been the fault of the respondent’s office: it may have been a problem with the service provided by stenographers to the Courts Service. It certainly was not any fault of the applicant. While it is true that this Court does have a significant workload of cases awaiting hearing, I do agree with the learned High Court judge that there was some prosecutorial delay, and arguably systemic delay also, in progressing the appeal before this Court. Was this blameworthy in the sense of being significant delay as distinct from minor delay only? I strongly suspect that the time taken is not outside the norm in this jurisdiction for such proceedings. I simply do not know though I would stress again that such information is readily obtainable from the Courts Service. Judges should not substitute their own subjective feelings about the reasonableness or otherwise of periods of alleged systemic delay without having evidence of the normal period of time taken by the particular type of proceedings or procedures within them. It is only against such norms that deviations from what is appropriate can be measured and assessed. I find that, in the absence of evidence as to the norm for this part of the process, it is impossible to find that there was a significant or blameworthy delay of such a degree which would enable me to conclude that this case even lends itself to the application of the principles in P.M. v D.P.P. [2006] 3 I.R. 172 or Barker v Wingo 407 U.S. 514 (1972) in the sense that any supposed delay is such as to trigger an inquiry and the application of a balancing test thereunder.

Further, in so far as the prosecution of the appeal is concerned, I am satisfied that there was applicant delay also. It is accepted that the applicant made no application either to strike out the appeal for lack of prosecution, nor did he make any application to this Court for an early hearing date of his appeal. These facts would also have had to go into and form part of any balancing exercise had it been necessary to conduct one.

Even allowing for the fact that the overall length of time since the time of the original alleged offence required a heightened degree of urgency in advancing this prosecution, I do not feel ultimately that the applicant has established that blameworthy prosecutorial or systemic delay has arisen in this case. Even if I had taken the view that there was blameworthy prosecutorial or systemic delay in this case, I am also satisfied, as was the High Court, that no actual prejudice to the applicant has been demonstrated nor has there been any impairment of his other rights such as are guaranteed by the constitutional right to a trial in due course of law.

I would, therefore, dismiss the appeal and affirm the order of the learned High Court Judge.











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