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Cite as: [1999] 1 ILRM 452, [1999] IEHC 111

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D.P.P. (Harrington) v. Kilbride [1999] IEHC 111; [1999] 1 ILRM 452 (22nd February, 1999)

THE HIGH COURT

1998 No. 1639 SS

IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 (NO. 39 OF 1961)

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA FERGAL HARRINGTON)

PROSECUTOR

AND

LIAM KILBRIDE

ACCUSED

Judgment of Mr. Justice Quirke delivered on the 22nd day of February, 1999

1. This is a Case Stated by Judge Timothy Crowley, a Judge of the District Court, assigned to the Dublin Metropolitan District pursuant to Section 52(1) of the Courts (Supplemental Provisions) Act, 1961.

2. The Accused person, Mr. Liam Kilbride was charged with the offence of having, on the 29th day of January, 1997, on the public highway within the jurisdiction of the Dublin Metropolitan District an excessive concentration of alcohol in his urine contrary to the provisions of Section 50(3) and (6)(a) of the Road Traffic Act, 1961, as amended.

3. The complaint in respect of the alleged offence was properly made on the 4th day of March, 1997 and a summons was issued in the manner prescribed by law on the same date returnable for the 5th day of May, 1997. When the matter was called for hearing before the learned District Judge on that date the said summons was not before the Court.

4. On the 25th day of September, 1997 the said summons was reissued returnable for the 11th day of December, 1997 and when it came before the Court on that date the learned District Judge adjourned the hearing to the 4th day of February, 1998 because there was insufficient time available to him to deal with all the matters which came before the Court on the 11th day of December, 1997.

5. When the matter came on for hearing before the learned District Judge on the 4th day of February, 1998 it was submitted on behalf of the accused person, Mr. Kilbride, that the charge preferred against him should be dismissed since a period of more than 12 months had elapsed since the date of commission of the alleged offence and such a delay was unconscionable and unreasonable and had caused Mr. Kilbride unnecessary anxiety and distress of such magnitude as to warrant the dismissal of the charge against him.

6. Judge Crowley has asked, by way of consultative Case Stated, whether the delay complained of warrants the dismissal of the charge.

THE LAW

In B. -v- D.P.P. [1997] 2 I.L.R.M. 118, the Supreme Court (Denham J.) clearly and unambiguously set out the following legal principles:-

"....The Constitution places relevant parameters on a criminal trial in cases of unreasonable delay.

REASONABLE EXPEDITION

The Constitution does not state expressly that there is a right to a speedy trial. Article 38.1 provides that no person shall be tried on any criminal charge save in due course of law. In addition, Article 40.3 imposes duties on the State and thus on the Courts as the judicial arm of government which include the protection of such rights as fair procedures.

The right to reasonable expedition was cited by Gannon J. in The State (Healy) -v- Donoghue [1976] I.R. 325 at 336 and in The State (O'Connell) -v- Fawsitt [1986] I.R. 362, Finlay C.J. stated 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'.

7. The right to reasonable expedition must be assessed in each case in the light of the particular circumstances of that case. If the Accused's defence has been explicitly prejudiced by the State's delay, for example, by the non-availability of a material witness, then he is entitled, on the delay being unreasonable and prejudicial, to an order prohibiting the trial.

8. Irish case law has already referred to Barker -v- Wingo (1972) 407 U.S. 514 which analysed the right in the Constitution of the United States of America to a speedy trial. Powell J. delivering the opinion of the Court identified four of the factors the Court should assess in considering if an applicant has been deprived of his right. These factors were length of delay, reason for delay, the defendant's assertion of his right and the prejudice to the defendant by the delay. He went on to state how prejudice should be assessed:-

'Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This court has identified three such interests:-

(1) To prevent oppressive pre-trial incarceration;

(2) To minimise anxiety and concern of the accused; and

(3) To limit the possibility that the defence will be impaired.'

....The court must look at the circumstances in each case, the issues and the constitutional interests of the parties, to determine the matter. There is no definitive time limit. There is no exhaustive or exclusive list of factors. There are interests which must be protected in the constitutional scheme of things.

FACTORS

9. The factors to be analysed and the issues which have to be determined include the following:-

(1) The delay in the case;

(2) The reason or reasons for delay;

(3) The accused's actions in relation to the events in issue;

(4) The accused's assertion of his constitutional rights;

(5) Actual prejudice to the accused;

(6) Pre-trial incarceration of the accused;

(7) Length of time of pre-trial anxiety and concern of the accused;

(8) Limitations or impairment of defence;

(9) Circumstances which may render the case into a special category;

(10) The Community's right to have offences prosecuted."

10. In the instant case there were two periods of delay, that is to say, a period of 4½ months between the date when Mr. Kilbride was first due to be tried in the District Court on the 5th day of May, 1997 (when the summons was not before the Court) and the 25th day of September, 1997 (when the summons was reissued).

11. Subsequently, there was a delay of just less than 2 months between the 11th day of December, 1997 (when the proceedings were adjourned because there was insufficient time to deal with all the matters which became before the Court on that day) and the 4th day of February, 1998 (when the matter finally came on for hearing before the learned District Judge).

12. The reason for the 4½ months delay between May of 1997 and September of 1997 has not been explained in evidence whilst the delay of just less than 2 months between December of 1997 and February of 1998 was caused by reason of additional pressure of work in the District Court.

13. It has been argued on behalf of Mr. Kilbride that since a period of more than 12 months elapsed between the date of the commission of the alleged offence and the date when he ultimately came for hearing he has been put through unnecessary periods of pre-trial anxiety and concern and that this amounted to an infringement of his constitutional right to trial with reasonable expedition.

In D.P.P. -v- Byrne [1994] 2 I.R. 236 the Supreme Court considered circumstances very similar to the instant case. It was held by the Court (O'Flaherty J., Blayney J. and Denham J. with Finlay C.J. and Egan J. dissenting) that there is no onus on the Director of Public Prosecutions to show that a prosecution such as this has been brought within a reasonable time. Furthermore, it was held that where an accused person seeks to have a valid summons dismissed on the grounds of delay the onus is upon such a person to satisfy the Court that there are grounds for so doing.

In the Byrne case (which involved a delay of some 10 months from the alleged offence to the trial of the action) it was held by the Court (Denham J.) that such a delay "....where there is no evidence of specific prejudice, is not such a delay as to infringe any constitutional right of the Accused in the circumstances of this case". It seems to me that similar considerations apply to the instant case.

14. The Community is entitled to have criminal offences prosecuted and, whilst there is a need to balance that right with the (greater) right of an accused person to receive a fair trial, what is required is balance. What is required is that the accused person should receive a fair trial and that this trial should be conducted with a degree of expedition which is reasonable in the circumstances.

In the Byrne case (supra.) it was confirmed that where there was a delay between the commission of the alleged offence and the date of the trial which was approximately 10 months there was no unreasonable delay in the prosecution of the charge against the respondent such as would entitle a Judge of the District Court to dismiss the charge by reason of prejudice to the accused person.

15. In the instant case, the only prejudice which has been identified on behalf of Mr. Kilbride is the fact that he has suffered from anxiety and concern whilst awaiting trial but there is little doubt that every person against whom a criminal charge of this nature is preferred suffers from anxiety and concern. What is actually alleged is that the duration of Mr. Kilbride's anxiety and concern has been lengthened by some 4½ months (or some 6½ months if the Director of Public Prosecutions is to be held responsible for the large volume of work within the District Court in Dublin in February of 1998).

16. No evidence has been adduced which would indicate that the degree of anxiety and distress and concern sustained by Mr. Kilbride has been such as to hinder his health or impair his memory or somehow reduce his capacity to defend himself.

17. Furthermore, it is of some significance that the distress and concern undergone by Mr. Kilbride was not sufficient to cause him (through the medium of his legal advisors) to seek relief by way of Judicial Review to prohibit the trial of the offences preferred against him on grounds of delay.

18. In the light of the foregoing I am satisfied that the facts which have been proved, admitted and agreed as found by the learned District Judge do not disclose a delay of the kind which would amount to an infringement of any constitutional right of the Accused in the circumstances of this case.

19. It is regrettable and undesirable that a delay of 4½ months (or 6½ months) should have occurred and that this should have lengthened the anxiety and concern of Mr. Kilbride, having regard to the serious offence with which he has been charged, but that increased duration of anxiety and distress did not of itself amount to specific prejudice of the type contemplated in Barker -v- Wingo (supra.) and B. -v- D.P.P. (supra.).

20. It follows from the foregoing that the question posed by the learned District Judge should be answered as follows:-

"The circumstances set out in the Case Stated herein do not disclose the existence of such an unreasonable delay in the prosecution of the offence alleged against the Accused as would itself warrant the dismissal of the charge."