Judgment Title: DPP -v- O'C
Composition of Court: Denham J., Hardiman J., Geoghegan J., Fennelly J., Macken J.
Judgment by: Denham J.
Status of Judgment: Approved
THE SUPREME COURT
[S.C. No: 17 of 2005]Denham J.
Director of Public Prosecutions
AppellantJudgment delivered the 27th day of July, 2006, by Denham J.
1. The Court of Criminal Appeal has certified, pursuant to s.29 of the Courts of Justice Act, 1924, that its decision of the 27th January, 2003, dismissing the appeal of P.O'C, the appellant, hereinafter referred to as the appellant, against his convictions by the Central Criminal Court on the 2nd June, 2000, on charges of indecent assault contrary to common law and s.6 of the Criminal Law (Amendment) Act, 1935, involve a point of law of exceptional pubic importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court on that decision.
2. The certified point of law is:
Although the notice of appeal contained other grounds, the sole ground of appeal pursued at the hearing before this Court was that the Court of Criminal Appeal was wrong in upholding the trial judge's refusal of such jurisdiction.
3. I adopt gratefully the summary of facts in the judgment of the Court of Criminal Appeal (McCracken J.) of the 27th January, 2003. The appellant was a primary school teacher and was charged on indictment with a number of sexual offences against young girls at the school in which he taught. In February, 1999 the matter first came before the Central Criminal Court where Carney J. made an order severing certain rape charges from other charges and ultimately on the 15th November, 1999, Kinlen J. ordered separate trials in relation to separate complainants. This appeal arose in the trial of charges concerning one complainant.
On the 25th January, 2000, the trial of the appellant began before McGuinness J. and a jury in the Central Criminal Court. No complaint or application was made in relation to delay. Unfortunately on the next day it transpired that two members of the jury knew some of the witnesses in the case and the jury was discharged.
On the 24th May, 2000, the case recommenced before Finnegan J. (as he then was) and a new jury. After the jury had been sworn counsel for the appellant made an application to the learned trial judge 'to stay the indictment in this trial'. The basis for the application was that the offences in the indictment were alleged to have occurred between 1979 and 1981 and that by reason of excessive delay it would not be possible for the applicant to get a fair trial. This was the first time that such an issue had been raised. The learned trial judge refused the application, stating:
On the 2nd June, 2000, the appellant was convicted on five counts of indecent assault and found not guilty of the remaining matters. Subsequently, he was sentenced to four years imprisonment with one year suspended and granted leave to appeal.
4 The Court of Criminal Appeal delivered judgment on the 27th January, 2003, affirming the preliminary ruling of the learned trial judge that he had no jurisdiction to entertain such an application to quash the indictment. The Court of Criminal Appeal relied on The State (O'Connell) v Fawsitt  I.R. 362 and BF v D.P.P  1 IR 656. The Court of Criminal Appeal held that the correct way to proceed in cases such as this is by way of prohibition, where the court is an inferior court, and by way of injunction against the Director of Public Prosecutions where the prosecution is in the Central Criminal Court. The Court of Criminal Appeal stated:
5. Oral and written submissions were made to this Court, on behalf of the appellant by Mr. Peter Finlay S.C. and on behalf of the Director of Public Prosecutions by Mr. Gerard Clarke S.C. The issue before the Court was the jurisdiction of the trial court, under the Constitution or at common law, to hear an application to stay or quash an indictment on the grounds of delay, at the commencement of a trial. Two separate foundations were proposed which, it was submitted, gave the court jurisdiction to stay or quash an indictment on the grounds of delay at the beginning of a trial.
6. First, it was submitted that the court had jurisdiction to hear a motion to quash the indictment on the grounds of delay on established common law. Reference was made to Ryan and Magee, The Irish Criminal Process (Mercier Press, 1993) pp. 270 - 271 as follows:
“At common law either the prosecutor or the defence may move to quash the indictment on the ground that it is bad on its face or so insufficient as to make any judgment given on it erroneous."
The limitations on such a motion were pointed out: as the Director of Public Prosecutions has control of the proceedings initially and may enter a nolle prosequi at any time, a motion by him would appear to be unnecessary; since the simplified form of indictment under the Criminal Justice (Administration) Act, 1924 and the extensive powers of amendment under s. 6 of that Act, the need for such an application by the defence has decreased. However, in Ryan and Magee at p. 271, it is stated that:
“Nevertheless, cases may occur where an amendment may be refused on the grounds that it could not be made without injustice, and it is conceivable that an indictment might be bad as disclosing on its face no offence known to the law, or only an offence triable summarily, or an offence not within the jurisdiction of the Court, or on the ground that the accused had not been properly committed for trial."
This submission for such a jurisdiction is in error. A motion of this type relates to technical matters, matters which, in general, are apparent on the face of the indictment, e.g. the indictment disclosing no offence known to law, or an offence triable only summarily, or not triable in the court in question. Archbold, 2004 ed., (Sweet & Maxwell, 2004) para. 4 - 47 et seq describes the law as follows:
(1) General principles
Where a prosecution is properly brought, a judge has no power to prevent the prosecution from presenting its evidence on the basis that he considers it unlikely there will be a conviction: Att.-Gen's Reference (No. 2 of 2000) 1 CrAppR 36, CA."
These general principles reflect the law in this jurisdiction also, being established common law principles. According to these principles there are very limited circumstances in which a trial judge may quash an indictment. As the Court of Criminal Appeal pointed out, it must be based on some fault in the indictment.
However, a fifth and further ground has been added in England and Wales, as stated in Connolly v. D.P.P.  AC 1254 at pp. 1354 - 1355 by Lord Devlin, that is where a particular criminal proceedings constitutes an abuse of the court's process. While the approach of several judges differed they all agreed that the court has an inherent power to protect its process from abuse. This development in the law in England was described in Archbold at para. 4 -49:-
"The views expressed in Connelly, ante, were considered, obiter, in DPP v. Humphrys  A.C. 1, HL. Only Lords Dilhorne, Salmon and Edmund-Davies considered the point. Lord Salmon and Lord Edmund-Davies concurred with the views expressed by Lord Devlin and Lord Pearce in Connelly, while Lord Dilhorne supported the narrower approach adopted by Lord Morris and Lord Hodson. '
Essentially it is this fifth ground upon which the appellant relies and wishes this Court to proceed.
While there is well established jurisprudence in Ireland that a court has inherent jurisdiction to protect its processes from abuse, it has not been the procedure used to consider pre-trial an issue of delay. An application for judicial review is the accepted vehicle in this State.
The fifth ground developed in England is not the law of this State. In this State a motion to quash an indictment relates to technical legal issues on the indictment, as set out previously. There is no good reason to extend the jurisdiction of such a motion. The extension of the law in England and Wales is at variance with the law as it has developed in this State. In Ireland it has been established that the appropriate procedure is that of judicial review - which law I shall address at a later stage in this judgment. In addition, there are sound practical reasons as to why an extension of the jurisdiction of such a motion is not appropriate. The issue of delay requires considerable fact finding by a court and thus a separate procedure, such as judicial review, is far more appropriate than a motion at the commencement of a trial.
Therefore on this first submission, I am satisfied that there is no such jurisdiction in the Central Criminal Court. A motion to quash an indictment relates to technical matters arising on an indictment and no such matter arises in this case. While it is well established under the Constitution and under common law in Ireland that the courts have an inherent jurisdiction to protect fair trial and due process, this does not apply to the issue of a preliminary application in a trial on the issue of delay. Other procedures are applicable. Thus this aspect of the appellant's grounds must fail.
Reliance was placed by the applicant on D.P.P. v. J.O'C (Unreported, Central Criminal Court, 3rd April, 2001) which was a judgment of Carney J.. In that case the accused had brought a motion to quash the indictment on grounds of delay before the trial judge, notwithstanding a refusal to grant leave to apply by way of judicial review on a previous occasion. The High Court referred to developing jurisprudence in relation to delay, particularly in sexual cases, coming from this Court. Carney J. stated that judicial review had been sought but refused and that the accused was told to raise the issue before the trial judge. Carney J. pointed out:
"Accordingly, what is different about this case is that the issues in relation to delay are arising not in the context of a civil action between the parties where the civil standard of proof would arise but are arising as a step within a criminal trial. And it requires to be determined upon whom the burden lies in relation to the issues that arise and according to what standard of proof.
The exercise which we are engaged in is well known to the textbooks, including the Irish textbooks, and it is termed 'A motion to quash the indictment'. It is clear that what is contemplated is not a formal motion for judgment served in advance of the trial, because the jurisdiction to raise a motion to quash the indictment exists during the currency of the trial and may take place at any time."
The High Court then referred to law on such a motion on the indictment, which is the law addressed earlier in this paragraph. The High Court held:
But I am satisfied that it is this jurisdiction of the motion to quash the indictment which is the one to be employed and it falls to the Court of trial to deal with the issue rather than the Civil Courts on judicial review application. The matter is extensively dealt with in Archbold, my edition starting at paragraph 1 - 236 under the heading:
It deals with the Common Law situation and it makes it clear that a motion can be brought to quash an indictment during the currency of the trial at any stage and of course after arraignment. So that is the exercise we are engaged on now, we are dealing with a motion to quash the indictment and having regard to the fact that hitherto this matter has been dealt with in civil actions according to the civil standard of proof we are identifying the standard of proof and where the onus lies in relation to criminal trials.
There are two matters which we have to concern ourselves with: First of all the proposition of whether the 20-year admitted delay is fatal to the proceedings, full stop, or whether there are circumstances which excuse it. Secondly we are dealing with whether there is any specific prejudice to the accused arising from delay which would render the trial unfair and therefore amenable to being halted."
The High Court proceeded to hear evidence and reach a conclusion on the evidence as to the facts relating to the delay and found the delay inexcusable and quashed the indictment.
While the High Court took a creative approach to the problem of applications relating to delay, the procedure runs contrary to the established law. The decisions of this Court have repeatedly stated that the appropriate procedure for such an inquiry is by way of judicial review. There is no doubt that the trial court has a general and inherent power to protect its process from abuse and that this power includes a power to safeguard an accused person from oppression or prejudice. However, this applies during the course of the trial and does not establish a right to a separate, discrete, preliminary process at the commencement of a trial to inquire into issues of delay. The correct procedure pre-trial is to make an application for leave to seek judicial review. It must be stressed that whether such an application for judicial review is granted or not, and even if such an application results in a refusal to grant an injunction or prohibition, the trial court retains its inherent power to protect its process and to make such orders as are necessary during the course of the trial. This includes orders arising from evidence or issues relating to delay. Consequently I am satisfied that the decision in D.P.P. v. J.O'C erred in law, and that it should not be adopted or applied.
7 Secondly, it was submitted that the trial court had jurisdiction to hear and determine the motion pre trial as to the delay and submitted prejudice on the basis of The State (O'Connell) v. Fawsitt  I.R. 362 and B.F. v. D.P.P.  1 IR 656. This submission is based on a misconception.
The special jurisprudence which has been established relating to the issue of delay in prosecuting cases of sexual abuse in children has addressed the matter of the appropriate remedy. Thus G. v. D.P.P.  1 I.R. 374 was an appeal to this Court from a refusal of the High Court to grant liberty to institute proceedings by way of judicial review seeking an injunction or prohibition preventing the trial of the applicant on twenty seven charges contained in a book of evidence. The charges referred to a series of offences of indecency against young girls and of carnal knowledge of girls under the age of fifteen years. The earliest date was a charge on a date unknown between the 1st January, 1967, and the 31st January, 1967, and the latest of the charges appeared to be on a date unknown between June, 1981 and the 31st December, 1981. The charges involved seven young girls. Judicial review was sought on the basis, inter alia, of the length of time which had elapsed from the date of the alleged offences and the date of any trial. Finlay C.J. pointed out that an applicant must satisfy a court in a prima facia manner that the only effective remedy, on the facts established by an applicant, which an applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure. Finlay C.J. held, at p. 379:
"(e) With regard to the appropriateness of judicial review as a remedy in this case, the judgment of this Court in The State (O'Connell) v. Fawsitt  I.R. 362 at p. 379, quite clearly endorsed the principle that if a person's trial had been excessively delayed so as to prejudice his chance of obtaining a fair trial that the appropriate remedy was a judicial review, even though the court of trial has, of course, jurisdiction to prevent the trial."
This is the general principle of law, if a trial is delayed the appropriate remedy in which to raise that issue is by way of judicial review. However, whether an application for judicial review is made or not, the trial court retains at all time its inherent and constitutional duty to ensure that there is due process and a fair trial. Thus, in the course of the trial matters may arise, evidence may be given, which renders a trial unfair, or the process unfair. In these circumstances the trial judge retains the jurisdiction of preventing the trial from proceeding. This jurisdiction is exercised in the course of a trial but does not enable, or relate to, a preliminary hearing at the commencement of a trial on the issue of delay.
It has been expressly stated in State (O'Connell) v. Fawsitt  I.R. 362 that a person charged with a criminal offence is entitled as part of his right to be tried in due course of law, to a trial with reasonable expedition. Where a trial of a person charged with an indictable offence has been excessively delayed so as to prejudice his chance of obtaining a fair trial, the appropriate remedy by which his constitutional rights may be defended and protected is by an order of prohibition or injunction. Such a person should not be put to the risk of being arraigned and pleading before a jury.
In G. v. D.P.P., which referred to State (O'Connell) v. Fawsitt, Finlay C.J. stated that the appropriate remedy was an application for leave to apply for judicial review. The further phrase by Finlay C.J., as to the jurisdiction to prevent the trial, was an expression of the law stating that simply because the appropriate remedy existed this did not exclude the fundamental jurisdiction of the trial court to protect its due process and to prevent a trial proceeding. Such reference related to the body of the trial and not to a pre-trial application. Similarly in MK v. His Hon. Judge Groarke (Unreported, Supreme Court, 25th June, 2002) reference is made to the judge made law relating to orders of prohibition and injunction, i.e. judicial review. This, of course, does not preclude the jurisdiction of the trial court in the course of the trial from addressing matters relating to delay which arise on the evidence. It is not inconceivable that evidence may be given during the course of the trial which would require the trial judge to exercise his jurisdiction to prevent the trial proceeding. When a judicial review has been heard and determined it does not exclude the continuing duty of a trial judge to ensure fair procedures and due process, including issues arising because of any delay. However, this jurisdiction is exercised in the course of the trial, on the evidence given in the trial, and not as a separate motion on specific evidence at the commencement of a trial.
8. I would dismiss the appeal. The Central Criminal Court does not have jurisdiction to hear an application at the commencement of a trial, or preliminary to a trial, to stay or quash an indictment on the grounds of delay. It is established law that the correct procedure is to apply to the High Court for leave to apply for judicial review.