High Court of Ireland Decisions

1. The Applicant has been returned for trial on six charges involving dishonesty offences. Four of the charges have been brought under the provisions of the Forgery Act, 1913 and the remaining two have been brought under the provisions of the Larceny Act, 1916 as amended by the Larceny Act, 1990. All of the offences are alleged to have been committed on various dates between the 2nd April, 1991 and 28th June, 1992.

2. On the 8th March, 1999 Morris P. gave leave for this Judicial Review. The Applicant seeks an order of prohibition to restrain the further prosecution of these six charges before the Circuit Criminal Court. The grounds relied upon to seek such an order and in respect of which leave was granted to apply are:-

3. Whilst references are made in the evidence before the Court to the Applicant’s family circumstances, the thrust of the case and the legal submissions made on his behalf were directed to the first two of these grounds.

4. The Applicant was a partner in a firm of stockbrokers and the charges relate to transactions alleged to have taken place while he held that position.

5. As I have already noted, the charges relate to matters which are alleged to have occurred between April 1991 and June 1992. A complaint was made to the police by the Applicant’s former partners concerning these alleged activities on the 22nd December, 1992. An investigation got under way headed by a now retired Detective Sergeant and other members of staff attached to the Fraud Section of the Central Detective Unit at Harcourt Square, Dublin.

6. On the 23rd February, 1994, some fourteen months after the making of the original complaint to the police, the Applicant was arrested on suspicion of forgery and was detained at Dundrum Police Station under Section 4 of the Criminal Justice Act, 1984. Whilst detained the Applicant declined to answer any questions.

7. Nine months later on the 24th November, 1994, the investigation file was submitted to the Director of Public Prosecutions for directions. During the interval between the Applicant’s arrest and this date the Court has been told on Affidavit that the investigation file was being completed.

8. The professional officer having charge of the matter in the office of Director of Public Prosecutions received the investigation file from the police on the 12th December, 1994.

9. On the 10th January, 1995 the office of the Director of Public Prosecutions raised a number of queries in respect of the contents of the file and received answers thereto on the 8th February, 1995. On the 14th February, 1995 further queries were raised in a letter from the DPP concerning three particular issues, namely, the evidence to be given by one of the suggested witnesses, the purchase of Allied Irish Bank shares by the Applicant on that witness’s behalf and the position regarding the dismissal of another person from the Applicant’s firm.

10. On the 18th April, 1995 additional statements were supplied by the police to the DPP in relation to handwriting analysis.

11. On the 28th April, 1995 the officer in charge of the case in the Office of the DPP sought a reply to his letter of the 14th February, 1995 by sending a reminder. He sent further written reminders on the 19th May, 29th May and 7th July, 1995 but it was not until

12. On the 31st July, 1995 additional proofs were forwarded to the DPP.

13. On the 17th August, 1995 new queries were raised by the DPP’s office concerning the purchase of Allied Irish Bank shares by the Applicant and also in relation to what is described as a “results” account. These queries had in turn to be followed up by reminders from the DPP’s office dated 16th October and 20th November, 1995. It was not until the 15th November, 1995 that a statement was taken from a witness regarding the purchase of these shares and that statement was received by the Director of Public Prosecutions on the 4th December, 1995.

14. On the 22nd December, 1995 three years to the day after the complaint was made the DPP wrote to the Office of the Chief State Solicitor suggesting that a consultation should take place in early January of the following year.

15. On the 28th December, 1995 the DPP received a letter from solicitors acting for one on the injured parties. It was suggested that the Applicant had made a statement in the presence of a solicitor admitting certain matters and as a result on the 23rd January, 1996 the DPP wrote to the police asking for the matter to be clarified.

16. On the 8th February, 1996 a consultation took place at the office of the Director of Public Prosecutions. As a result of that, the police were asked to obtain clarification of a number of matters and also to enquire into the alleged admissions. This request had also to be followed up by a reminder dated the 13th March, 1996. The material was ultimately received by the DPP on the 30th April, 1996. Meanwhile on the 11th March, 1996 one of the partners in the firm of stockbrokers to which the Applicant belonged made contact with the police regarding the making of a further statement.

17. On the 2nd May, 1996 the DPP requested the police to carry out further enquiries. These were carried out and correspondence was forwarded to the DPP on the 5th June, 1996 but was not apparently received by the professional officer in that office until the 25th June, 1996.

18. On the 2nd July, 1996 the DPP wrote asking that Mr. Kevin Haugh, S.C. (as he then was) be briefed and requested his opinion and general advice. Shortly afterwards Mr. Haugh was appointed a Circuit Court Judge and Mr. Paul O’Higgins S.C., was nominated in his stead on the 2nd August, 1996.

19. A further consultation took place on the 4th September, 1996 and Counsel requested additional material. This was done and the material was obtained on the 8th November, 1996 by the DPP, who was advised that it had been copied to Counsel.

20. Nothing appears to have happened then until May of 1997. On the 13th May, 1997 a consultation took place at the request of the DPP where Counsel indicated that he would need more time to consider matters dealt with at that consultation and suggested that perhaps a further consultation should be arranged. Subsequently Senior Counsel requested that Junior Counsel be briefed owing to the complexity of the matter. In late May or early June 1997 Junior Counsel was briefed.

21. On the 17th July, 1997 a further consultation was held at which Counsel were requested to draft the charges which they considered might be appropriate. These draft charges were submitted by Counsel on the 19th August, 1997. Queries were raised with

22. Counsel by the DPP by means of a letter of the 17th September, 1997 and that was replied to on the 24th October, 1997.

23. Nothing further occurred until the end of January of the following year. On the 28th January, 1998 correspondence was forwarded by the police in relation to directions regarding charges. A similar exercise was engaged upon by the police on the 16th March, 1998 and finally on the 14th May, 1998 directions were received. It was not until that date that directions were issued to the effect that a prosecution should take place.

24. The directions of May, 1998 were on the 28th of that month forwarded to the police for the purposes of preferring the charges.

25. On the 9th June, 1998 an information was sworn by a Detective Sergeant O’Sullivan for a warrant to arrest the Applicant. That warrant was granted and on the 11th June, 1998 the Applicant was arrested and brought before Dublin District Court where he was charged. On the 24th September, 1998 the Book of Evidence was served and the case remanded for preliminary examination to the 5th November, 1998. It was further remanded until the 1st December, 1998 and thereafter to the 15th December, 1998 and the 9th February, 1999. Submissions were made to the District Court concerning the delays but the District Judge decided to return the Applicant for trial and indicated that the question of delay could be dealt with before the trial Court. The following month application was made to Morris P. for leave to commence these proceedings.

26. The Applicant contends that three separate periods of delay fall for consideration on this application.

27. The first is the period between the dates of the alleged offences and the making of the complaint to the police. The offences are alleged to have occurred as early as the 2nd April, 1991 and as late as the 28th June, 1992. The complaint was made on the 22nd December, 1992. That is a period of twenty months or six months depending upon the date of the alleged offences which is chosen. At the hearing before me Counsel for the Applicant disavowed any complaint in respect of that period so it need not trouble me any further.

28. The second period of delay is that between the date when the complaint was made to the police and the date of the first arrest of the Applicant. That is a period of fourteen months. It is said that this delay was excessive and has not been adequately explained. Insofar as this criticism is concerned, Counsel draws my attention to the decision of Geoghegan J. in P.P. -v- Director of Public Prosecutions (unreported 5th October, 1999). There a delay similar to that involved in this period, namely, fourteen months, elapsed between the making of a complaint and the interviewing of the accused. In the case of P.P. the Court was dealing with an alleged sexual offence which allegedly occurred in 1977. The first complaint was made in November 1995. It was not until January of 1997, some fourteen months after the original complaint was made, that the accused was interviewed. Geoghegan J. took the view that the police investigation had been conducted in a lackadaisical and slovenly fashion. He expressed the opinion that he did not find it credible that the police could not have found the Applicant and interviewed him at a stage much earlier than they did. I am asked to come to the same conclusion in this case.

29. I do not think that the two cases are at all comparable. In the case of P.P. the charges were relatively straight forward. That cannot be said of the charges here. In P.P.’s case there appears to have been very little done in the fourteen month period. That cannot be said in the present case. There is uncontroverted evidence before me that during 1993 witnesses were contacted and frequently such witnesses indicated that they wished to obtain their own legal advice before co-operating with the investigation. The manager of the Government Loans Department of the Central Bank of Ireland and a senior bank official at the National Irish Bank agreed to make written statements and to provide essential documentary evidence but they also sought legal advice in advance of their co-operation. Statements were taken from officials in Bristol and West Sussex in England. Application was made to the appropriate authorities for permission to travel to Bristol and Worthing and the English police also had to approve the interviewing of those witnesses. To my mind this is indicative of considerable activity on the part of the police and I decline to make criticism of the type justifiably made by Geoghegan J. in the case of P.P. -v- DPP . The cases are not at all similar. The charges in this case are far more complicated and there was here very considerable police activity in the relevant period by contrast with the very little activity which took place in the case of P.P. -v- DPP. Consequently I am of the view that no legitimate criticism can be made of the fourteen month delay between the making of the initial complaint and the arrest of the Applicant.

30. The final period of delay which is identified by the Applicant is that between the date of his first arrest in February 1994 and his second arrest on the 11th June, 1998 a period of four years and four months. This is undoubtedly the most significant period of delay.

31. Counsel for the Applicant divided this period of delay in turn into three separate parts.

32. Counsel for the DPP of the charges which they considered to be appropriate, namely, the 19th August, 1997 - a delay of thirteen months.

33. I will take each of these periods in turn.

34. Nine months elapsed between the arrest of the Applicant and the submission of the investigation file to the Director of Public Prosecutions for his directions. The only explanation which is given for this period is that the investigation file was being completed during the course of the summer and early autumn of 1994. That seems like a long time but it is in part at least explained by the averment at paragraph 9 of Detective Inspector McGinn’s Affidavit by reference to the fact that the police had to travel to London for the purpose of making inquiries at the Securities and Futures Authority. It was in March 1994 that the manager there was interviewed and a statement taken. She furthermore points out that investigations in England were dependent on the goodwill and co-operation of witnesses and the police authorities there. However, there is evidence that the bulk of the exhibits had already been collected at the time of the Applicant’s first arrest. I have come to the conclusion that whilst it would have been desirable for this aspect of the investigation to be concluded more speedily the delay up to the submission of the papers to the DPP could not in all the circumstances be regarded as inordinate. It has been suggested that this is a relatively straightforward case and ought to have been dealt with with much greater dispatch. I think that is rather too simplistic a view of the matter. Fraud cases by their nature are complicated and this one is no exception. I am by no means saying that it is the most complicated case to have come before the courts or anything like it but nonetheless the Book of Evidence does involve nineteen witnesses two of whom will be coming from England to give evidence. In addition there are in excess of 75 exhibits included in the Book of Evidence.

35. Once the papers were received in the DPP’s office they appear to have been dealt with speedily. Having received them on the 12th December, 1994 the officer in charge raised queries which were dealt with within a month. On the 14th February, 1995 he raised further queries but these were not replied to until the 8th August, 1995. During the intervening period he had to send no fewer than four written reminders. Accordingly, a period of six months elapsed between his request and the response to it. To my mind that was inordinate and it seems wholly undesirable that the DPP should have to send four written reminders before getting a response. However, it must be said that the Affidavit sworn by the officer from the DPP’s office says that that delay may in part be explained by the fact that he received additional statements in May 1995 and additional copies of the same statement were sent later in May and again in July of 1995 in apparent response to his letter of the 14th February. That may well be an excuse for part of this delay but it also demonstrates a degree of confusion in respect of which no explanation has been given. I regard this delay as inordinate and to have been only partly explained.

36. On the 17th August, 1995 the DPP raised new queries with the police. These queries were not dealt with timeously and involved reminders being sent by the DPP on 16th October and 20th November, 1995. On the 4th December, 1995 the information sought was given. No explanation at all has been offered for this delay of approximately four months. It is inordinate and no excusing circumstances have been demonstrated.

37. In December, 1995 a consultation was suggested which did not take place until the 8th February, 1996. Allowing for the intervention of the Christmas period and the fact that there was some correspondence in the meantime from solicitors acting for one of the injured parties that delay does not appear to me to be inordinate.

38. At the consultation of the 8th February, 1996 the police were asked to obtain clarification of a number of matters. The DPP had to issue a reminder on the 13th March, 1996 concerning that request and the material was not obtained until the 30th April, 1996. Thus a further delay of almost three months occurred. Within two days of receiving the information the Office of the DPP requested the carrying out of further enquiries. These were carried out and the results were communicated to the DPP on the 25th June, 1996.

39. In July 1996 Counsel was briefed but shortly thereafter was appointed to the Circuit Bench and new Counsel was nominated in August 1996. A consultation with Counsel was held in September 1996 and additional material was sought. That was forthcoming on the 8th November, 1996 and was sent to Counsel. Meanwhile on the 18th October, 1996 the file had been returned to the Office of the DPP for directions.

40. Nothing appears to have happened between then and the 13th May of the following year, a delay of six months. No explanation has been furnished for that inordinate delay.

41. On the 13th May, 1997 a further consultation took place and Counsel indicated that he would need more time to consider the matter. Senior Counsel then requested the briefing of a Junior Counsel and that took place some time in May or early June 1997. In July 1997 a further consultation was held at which Counsel were requested to draft the charges which they considered might be appropriate. They were submitted by Counsel on the 19th August, 1997. Queries were raised with Counsel in September of that year and were replied to on the 24th October, 1997. Nothing appears to have happened to the matter for a further three months as it was not until the 28th January, 1998 that correspondence was forwarded by the guards in relation to directions concerning charges. Again no explanation has been offered for this three month delay.

42. In March 1998 there was further correspondence sent by the police to the DPP regarding directions. A further two month delay occurred and it was not until the 14th May, 1998 that directions were received.

43. Thereafter matters appeared to move with reasonable expedition and the Applicant does not make complaint of any delay subsequent to the receipt of directions on the 14th May, 1998.

44. Counsel for the DPP, whilst he conceded that there had been a delay in the case, was not prepared to accept that it was inordinate. I have come to a different conclusion. Taken as a whole this period must be regarded as one of inordinate delay. On occasions it appears that no work at all was done in relation to the matter for periods of up to six months.

45. I fully accept that the case is not straightforward and involved considerable expenditure of time and resources. Documentary evidence had to be assembled, witness statements taken and some of these had to be taken in respect of witnesses outside the jurisdiction where the co-operation of those witnesses and the English police forces involved was necessary. In addition I accept that some of the witnesses, before they were prepared to talk to the police, wished to obtain their own legal advice on the matter. Even allowing for all of this, however, the plain fact is that the first complaint to the police was made in December of 1992 and it was not until May 1998 that directions were received from the DPP directing that charges be preferred. That is a period of some 5½ years. Whilst parts of that are clearly justifiable having regard to the factors which I have just identified, others are not. The case was not so complicated or involved as to justify such a delay. There were considerable periods of inactivity and others of unduly slow activity rendering the delay inordinate. In respect of at least some of these delays no particular explanation has been forthcoming and in respect of others the explanation has not provided a sufficient excuse for the delay. An unexplained delay is an inexcusable delay.

46. In the circumstances I have therefore come to the conclusion that the delay in this case is inordinate and inexcusable and I must now turn to consider the legal implications of such a finding for the present application.

47. I also take into account what was said by Finlay C.J. in Z -v- Director of Public Prosecutions [1994] 2 IR 476 at page 507.

48. In the same case at page 507 it was stated that “a real risk of an unfair trial ... means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge”.

49. All of these are factors to be taken into account in determining the crucial issue namely whether the delay gives rise to a real risk of an unfair trial. I will now turn to consider the factors identified by Denham J in the context of the facts of this case.

50. I have already made a finding that the delay in this case is inordinate and not excused. It is conceded by Counsel for the DPP that I am entitled to look at the cumulative delay and in my view the period in question is excessive.

51. I have already held that portions of the period of delay in respect of which complaint is made have been adequately explained but other periods have not. In respect of some no explanation at all has been proffered over and above the alleged complexity of the case. The DPP has suggested that one of the reasons for the delay was the fact that the Applicant refused to cooperate with the investigation by not making a statement. His wife, whose signature is alleged to have been on a number of the documents used in perpetrating the alleged fraud, adopted a similar stance. Thus it is said that the Applicant is responsible for some of the delay. The Applicant acted entirely within his rights in taking the stance which he did and I do not therefore think that he can have blame attributed to him for the delays in suit. Even if an element of blame could be attributed to him it would not absolve the prosecuting authorities for the inordinate delay overall.

52. There is no question here that the Applicant obstructed or impeded the investigation. On legal advice he refused to make any statement and as I have already commented was within his rights in so doing. There is uncontroverted evidence that at all times he has been available and amenable to the police.

53. I do not believe that any legitimate criticism can be made of the Applicant under this heading either. Indeed, one would have some sympathy for a person who was arrested in February, 1994 and between then and June, 1998 had no further communication from the police and no intimation that a prosecution was under active consideration. Once he was brought before the District Court he raised the question of delay and when that Court declined to deal with the matter he then brought the application before this Court in a timeous fashion.

54. In the present case there was no question at all of pre-trial incarceration still less oppressive incarceration. The Applicant obtained bail at the earliest opportunity and has remained on bail throughout. Accordingly, no prejudice can be asserted under this heading.

55. I have no doubt but that any person facing criminal charges suffers anxiety and concern. The present case is no exception in that regard. The Applicant however, on his own evidence was from the end of 1994 until June of 1998 “firmly of the view that no prosecution was being proceeded with”. Accordingly, little anxiety concerning an imminent prosecution was suffered by him during that period in respect of which the complaint of delay is now made. I therefore conclude that he has not made out a case under this heading. No doubt his second arrest on 11th June, 1998 was all the more shocking to him because he had formed the view in question but that of itself would not provide a basis for intervention by this Court.

56. There is no suggestion in the Applicant’s affidavit of actual prejudice caused to him in the defence of the criminal proceedings. At the hearing before me I was told that one of the prosecution witnesses had died a few days prior to the hearing. The probable effect of that will be to the Applicant’s benefit. I am not satisfied that actual or particular prejudice has been established arising from the delay here.

57. Neither do I take the view that the delay is so excessive as to raise an inference that the risk of an unfair trial has been established as a reality. The Applicant says that witnesses’ recollections do not get any clearer with the passage of time. In that he is undoubtedly correct. However, I am of the view that the delay here is not so excessive as to render that a real risk of an unfair trial. Furthermore, it is clear that in many respects this is a “documents case”. By that I mean that the prosecution will to a great extent be relying on documentary evidence in order to prove its case. To a considerable extent therefore, the question of witnesses’ recollections of events will play a lesser part than they would in a case where documentary evidence did not form a substantial part of the prosecution case.

58. There are no circumstances which place this case into a special category in my view. Certain sexual offences appear to have been so designated. If the case is to be regarded as in a special category it can only be so as a result of the large part that documents will play in the prosecution. If it were to be so specially categorised as a “documents case” that would count against rather than in favour of the applicant.

59. This aspect of the matter was considered by Denham J. in B -v- Director of Public Prosecutions [1997] 3 IR 140 where at pages 195-196 she said:-

60. In my view the applicant has not established the existence of a real risk that he will not receive a fair trial. Consequently his right to a fair trial is not impaired and certainly not to the extent that it prevails over the community’s right to have offences prosecuted.

61. I have come to the conclusion that whilst there has, very regrettably, been inordinate and inexcusable delay in the prosecution of these charges, the Applicant has not demonstrated that such delay has given rise to a real risk of an unfair trial. No actual prejudice has been shown and the circumstances are not such as to give rise to an inference that the risk of an unfair trial has been established as a reality.

62. In these circumstances this application is dismissed.