Judgment Title: Nash -v- DPP
Neutral Citation:  IEHC 598
High Court Record Number: 2010 35 JR
Date of Delivery: 17/12/2012
Court: High Court
Composition of Court:
Judgment by: Moriarty J.
Status of Judgment: Approved
Neutral Citation  IEHC 598
THE HIGH COURT
[2010 No. 35 J.R.]
DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of Mr. Justice Moriarty delivered on the 17th day of December, 2012
‘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’
89. I would remark that, in [Barry], 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, if they were claimed. Any such claim would have to be made in the High Court in the first instance. The [European Convention on Human Rights] Act of 2003 might be relevant.”
6. The applicant also refers to the dicta of Kearns P. in Barry, who stated at para. 142:-
8. The applicant submits that damages for breach of constitutional rights are actionable per se without proof of special damage, but that in the instant case, he can point to heightened levels of anxiety, difficulties in presenting his defence and prolonged detention in an Irish prison as a British national, as a consequence of the repeated refusals of his applications to transfer.
9. The applicant also contends that he should be entitled to his costs, whether or not he is successful in his damages claim, and notwithstanding that he has been unsuccessful in securing an order restraining his further prosecution. In the event that he is unsuccessful in his damages claim, the applicant refers to a significant line of authority allowing for costs to be awarded to the losing party where the case raises a point of public importance. It is submitted by the applicant that this is one such case.
11. The respondent referred in general terms to previous cases that have been prosecuted on foot of scientific advances or new evidence, after long delays. The cases relied upon by the applicant - McFarlane and Barry - are contrasted with the present on the grounds that they were concerned with delay that occurred in the criminal proceedings, post arrest. The respondent submits that the date of charging is the critical factor for the purposes of calculating delay and that there was no delay from the time that the applicant in this case was charged.
12. Furthermore, the respondent argues that the reasons cited for the applicant’s alleged stress and anxiety – delay, lurid publicity, refusal of requests to transfer to English prison and consequent breakdown of familial relationships – have not been pleaded or substantiated by evidence in the appropriate way. The respondent states that that there was no question of pre-trial incarceration of any length as the applicant was already serving life sentences for separate crimes. It is argued that the decisions of the High Court to uphold the decisions of various Ministers for Justice to refuse the applicant a prison transfer are beyond attack at this stage of proceedings. The respondent also points out that the question of prejudicial publicity was substantially beyond the control of the D.P.P.
13. Finally, on the basis of the respondent's contention that the applicant has not succeeded in his claim for damages, it is submitted that costs should follow the event.
16. There has been much argument between the parties on the issue of when criminal proceedings can be considered to have begun for the purposes of the reasonable time requirement under Art. 6 ECHR. The applicant maintains that it was at the earliest 12 years ago. The respondent argues that the length of the criminal proceedings is to be calculated from the date of his arrest in October 2009. Prior to that time, as set out in my earlier judgment, another individual had been charged with the Grangegorman murders, and the applicant himself was in lawful custody on foot of the killing of a young couple in Co. Roscommon. In light of these and other circumstances in this case, I am satisfied that it was on the latter date, the date when the applicant was “charged” that the reasonable time referred to in Art. 6 began to run. This was not a case where nothing happened that was unexplained for an extended period of time, such as would give rise to a finding that the applicant's rights under the Constitution and the ECHR had been breached. It follows that the applicant’s claim for damages is without basis.
17. This leads me to consider the applicant's claim for costs. While the costs of proceedings usually follow the event, there is a judicial discretion in certain cases to award costs or a portion of the costs to the losing applicant. In Dunne v. The Minister for Environment and Others  2 IR 775, Murray C.J. stated as follows at p. 783:-
19. This case is distinguishable from Rattigan v. D.P.P.  4 IR 639, in which the Supreme Court, while affirming the High Court’s refusal of prohibition, nevertheless viewed delay and want of candour on the part of State agencies so gravely that it awarded full costs to the applicant/appellant. I do not accept the submission of the respondent in this matter that the case did little more than retread ground well trodden in Rattigan. Detailed and at least potentially statable arguments specific to the facts of an enormously grave case had to be presented and considered, and the applicant can have no complaints as to the quality and commitment of service provided by his solicitor and two counsel. In considering the interests of justice, it is no small matter that accused persons in major cases should be able to retain in their defence or in related judicial review proceedings practitioners of commensurate experience and ability. Combining that factor with the element of forensic delay noted, I am of the view that a departure, albeit a limited one, from the normal costs rule is warranted, and accordingly view it as appropriate that the applicant should be awarded one third of his costs in these proceedings. In forming the view, I have also had regard to the context of a paper presented by a senior criminal law practitioner at the 2012 National Judges’ Annual Conference in Dublin Castle, which touched upon both the availability and low levels of potential remuneration for defence practitioners in judicial review proceedings, by way of legal aid and/or any discretionary involvement of the Attorney General.