High Court of Ireland Decisions

Blood v. D.P.P. [2001] IEHC 183 (28 June 2001)

THE HIGH COURT

JUDICIAL REVIEW

[2001 No. 182 J.R.]

Between:

DARREN BERNARD BLOOD

Applicant

-and-

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent.

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 28th day of June, 2001.

1.      The applicant seeks an injunction directed to the respondent restraining the further prosecution of the applicant in proceedings entitled The People (at the suit of the Director of Public Prosecutions) v. Darren Bernard Blood, having obtained leave to bring this application by order of 26th March, 2001, on the grounds:

(1) That the delay between the dates of the alleged offences (1st April, 1994, to 30th April, 1994,) and the date of the return for trial of the applicant on 31st January, 2001, amounts to a failure to vindicate the applicant's constitutional entitlement to fairness of procedures and a breach of his right to constitutional and natural justice.

(2) That the delay between the dates of the alleged offences (1st April, 1994, to 30th April, 1994,) and the date of the return for trial of the applicant on 31st January, 2001, amounts to a failure to vindicate the applicant's constitutional right to an expeditious hearing.

(3) The applicant's rights to a fair trial, to fair procedures, to constitutional and natural justice and to an expeditious hearing have been violated by the failure by the prosecution to investigate these matters with reasonable expedition and to prosecute with reasonable expedition.

(4) The applicant's rights to a fair trial, to fair procedures, to constitutional and natural justice and to an expeditious hearing have been violated by the failure of An Garda Síochána to carry out their investigation with all reasonable expedition and the failure of the respondent to prosecute diligently in relation to these matters. In particular the applicant relies upon the following matters:

(a) The date in which the offences are alleged to have occurred is in the month of April, 1994.

(b) The evidence upon which the respondent seeks to rely is apparently based upon evidence of two witnesses i.e. Michael Broughall and Martin McHugh. The evidence of Michael Broughall has been in the possession of the prosecution since August, 1996. The applicant was arrested under the provisions of s. 30 of the Offences Against the State Act, 1939, on 25th September, 1996, and during the course of his detention he was questioned in relation to alleged receipt of firearms from Martin McHugh. The applicant was released without charge. Nothing of evidential value flows from his arrest.

(c) On 7th July, 1999, the applicant was charged with the said offences.

(5) Further the applicant's rights to a fair trial, to fair procedures, to constitutional and natural justice and to an expeditious hearing have been violated by the failure of the Chief State Solicitor/respondent to deal expeditiously with the file and by the delay in charging the applicant at the earliest opportunity. In this regard the applicant relies upon (a) the delay between May, 1994, and July, 1999, or in the alternative (b) the delay between August/September, 1996, and July, 1999.

(6) Further and in the alternative the applicant's rights to a fair trial, to fair procedures, to constitutional and natural justice and to an expeditious hearing have been violated by the failure of the respondent to prosecute the within proceedings with all appropriate expedition and in particular by the decision of the respondent to delay the charging of the applicant until after the trial of Martin McHugh which said trial concluded on 26th March, 1998.

(7) Further, if the respondent was entitled to wait until after the conclusion of the trial of the said Martin McHugh, the respondent was guilty of a further delay in breach of the applicant's constitutional rights to a fair trial, fair procedures and an expeditious hearing in delaying the charge of the applicant for a further sixteen months until July, 1999.

(8) Furthermore, the applicant's constitutional rights to a fair trial and an expeditious hearing of the said trial have been violated by the delay in securing dates for the taking of depositions in the District Court in this matter. This delay was due to the difficulty in obtaining court dates for the hearing of the said depositions. Despite being charged on 7th July, 1999, the Applicant was not returned for trial until 31st January, 2001.

(9) The delay itself between the date of the alleged offences and the date of charge of the applicant and/or the date of return for trial of the applicant is of such a magnitude as to amount to a breach of his rights to a fair trial, to fair procedures, to constitutional and natural justice and to an expeditious hearing.

(10) Further, the delay between the date of the alleged offences and the date of charge of the applicant and/or the date of return for trial of the applicant has greatly prejudiced the applicant in respect of the following: the applicant has severed his links with the motor cycle club with which he was associated at the time of the alleged offences and wherein many relevant witnesses to the facts alleged might have been found.

(11) The trial of the applicant on these offences at such a remote time from the date of the alleged offences in the circumstances as set out herein amounts to an abuse of the process of the courts.

2.      The applicant is a married man with two children and resides in Dublin. He stands indicted before the Dublin Circuit Criminal Court pursuant to Bill No. 106/01 on two counts of possession of firearms/ammunition on a date unknown between 1st April, 1994, and 30th April, 1994, at Donamore Crescent in Tallaght, County Dublin. He was returned for trial on 31st January, 2001, having been charged with the offences in question on 7th July, 1999, having met the gardaí by arrangement that same morning.

3.      The applicant gives as the sequence of events the following. He says that the evidence of Michael Broughall was taken on deposition at the District Court on 3rd January, 2001, and the evidence of Martin McHugh was taken on deposition at the District Court on 29th November, 2000.

4.      The applicant was originally arrested and detained pursuant to s. 30 of the Offences Against the State Act, 1939, in or about the month of July, 1994, at Wexford on suspicion of having had possession of firearms at Carnew, County Wexford. He was released without charge at that time. Subsequently on 25th September, 1996, his house was searched pursuant to a search warrant issued under the provisions of s. 29 of the Offences Against the State Act, 1939. He says that during the course of that search he was arrested pursuant to s. 30 of the said Act for the possession of firearms. The applicant refers to the book of evidence wherein a statement of the evidence to be given by Sergeant Gerard McGrath indicates that the arrest was for the possession of firearms between October, 1994, and February, 1996. The applicant says that during the course of his detention he was questioned about the receipt of handguns from Martin McHugh sometime after October, 1994. The applicant states that nothing of evidential value to the present case was obtained during the course of the detention. He says that despite the fact that this search, arrest and questioning appear to have had nothing to do with the possession of firearms in or about April, 1994, these matters have been included in the book of evidence served on him.

5.      The applicant refers to contents of the book of evidence and states that the contents of same indicate that the garda investigation in this case began with the investigation into the unlawful killing of one Stephen Murphy on 29th April, 1994, at Carnew, County Wexford. The applicant refers to the fact that the charges against him relate to the allegation of possession of firearms/ammunition at Tallaght, County Dublin. He expresses the view that the only alleged evidence against him is that contained in the statements attributed to Michael Broughall (who is incorrectly named as Branghall in the book of evidence) and Martin McHugh.

6.      Reference is made to the statements of Michael Broughall in which he states that he was arrested in May, 1994, and in the course of his detention he is alleged to have stated that the applicant was in possession of a gun "for a weekend" namely that of the 29th April, 1994. The statement also contains the allegation that it was the applicant who first had the gun. The applicant points out the fact that Michael Broughall was subsequently convicted of possession of firearms and received a five year suspended sentence of imprisonment for same at Wicklow Circuit Court on 30th March, 1995.

7.      The applicant points out that Martin McHugh was subsequently charged with and convicted of the possession of firearms in the Dublin Circuit Court on 26th March, 1998, and received a four year suspended sentence.

8.      The applicant says that despite the information being in the possession of the respondent he was not charged with the alleged offences until July, 1999. He says that after he was charged his solicitor wrote to the respondent on 28th September, 1999, seeking information regarding the bringing of these charges. He points out that a reply was received from the Chief State Solicitor on behalf of the respondent on 6th December, 1999, which he says indicates that the respondent considered it necessary that proceedings against Martin McHugh be concluded prior to the commencement of the prosecution in this case. He says that it is apparent from the material supplied that McHugh only provided the evidence in or around August, 1996, and that he was subsequently prosecuted and convicted on 26th March, 1998.

9.      The applicant contends that the charging of one person who is a witness for the prosecution against another person is not a ground for delaying the charging of that other person. He says that the laying of a charge against him at an early stage would have given him the opportunity of preparing his defence at the earliest opportunity. He says that even if his trial had been adjourned pending the trial of Martin McHugh, such an adjournment would have been at his option and in any event his trial would have taken place within a short period after March, 1998. He says that even if the respondent was correct in failing to have him charged until after the trial of Martin McHugh there is no explanation for the further delay of eighteen months in having him charged. He says that he was available to be charged at all times during the intervening period and no approach of any kind was made to have him charged or to have him available for charging. On this basis the applicant says that in this context the delay of a further eighteen months on the part of the respondent is inexcusable and amounts to a complete disregard of his rights to an expeditious trial and to a fair trial in accordance with the Constitution.

10.      After the applicant was charged he required the evidence of Martin McHugh and Michael Broughall to be taken on deposition. He says that he made that request but due to the delays in the District Court system the earliest date for the taking of depositions was 29^th November, 2000. He says that on 14th January, 2000, he indicated through his solicitors that he wished to call the said witnesses on deposition. He says that on that date, a date for the taking of the depositions was fixed for 14th June, 2000. On that date he attended court with his solicitor but no representative from the Chief State Solicitor's Office nor An Garda Síochána attended and neither did the witnesses. He states that in those circumstances the court had no option but to adjourn the matter to a further date for the taking of the depositions which was on 29th November, 2000. He states that on that date there was insufficient time to take the depositions of both witnesses and a further date was secured for the taking of the deposition of the second witness which was on 3rd January, 2001.

11.      The applicant contends that the delay complained of has resulted in a denial of his right to a fair and expeditious trial. He says he has been prejudiced by the delay as since he was arrested he has continued with his life and has conducted himself in the belief that no proceedings would be brought against him. He says that he has married in the period since the date of the alleged offence and the date when he was charged. He says further that since his marriage he has not associated with any of his former associates from the motorcycle fraternity and that he has lost contact with any persons who may have been in a position to give evidence on his behalf and he complains that the pressure of these proceedings against him have strained his marriage to the extent that he has recently separated from his wife.

12.      A statement of grounds of opposition has been filed by the respondent and consists merely of a traverse of the applicant's grounds. It is supported by an affidavit of Claire Loftus, who at the time of swearing was a principal solicitor in the Office of the Chief State Solicitor and is now the Chief Prosecution Solicitor.

13.      She says that she was at all material times the person charged with responsibility for the file concerning the prosecution of the applicant in respect of the two offences for which he had been returned for trial to the Dublin Circuit Criminal Court on 31st January, 2001. She says that by letter of 28th September, 1999, the applicant's solicitors wrote to the Office of the Chief State Solicitor seeking full disclosure of all materials in the respondent's possession or procurement concerning his prosecution and an explanation for any alleged delay in bringing the charges against him. The letter was replied to in detail on 6th December, 1999. This indicates that the delay complained of relates to the decision that the proceedings against Mr. McHugh be concluded prior to the applicant being charged. It is indicated that the applicant would have been obliged to incriminate himself had he been obliged at the time to give evidence against the applicant at a time when charges were pending against Mr. McHugh.

14.      With regard to the period from the end of March, 1998, when Mr. McHugh was sentenced to July, 1999, it is pointed out that at the end of August, 1998, the State Solicitor for Wicklow, Mr. Rory Benville informed the respondent that the proceedings against Mr. McHugh had terminated with his conviction and that he was willing to give evidence in the prosecution of the applicant. Thereafter a difficulty arose in the Office of the Director of Public Prosecutions in locating the original file. On 3rd December, 1998, the professional officer responsible for the file made a submission to the Deputy Director of Public Prosecutions recommending that the applicant be charged with offences under the Firearms Acts. Five days later a direction to that effect was communicated to the State Solicitor, Mr. Benville. On 29th March, 1999, he replied by letter setting out reasons given by members of An Garda Síochána who were responsible for the investigation into the death of Stephen Murphy, who was killed with a single bullet wound to the head in May, 1994, to justify the applicant being charged with Mr. Murphy's murder. Having reviewed these submissions, the respondent confirmed the original direction two days later. These directions were received by the gardaí in late April, 1999, and it is stated that once contact was established with the applicant he was arrested and charged on 6th July, 1999.

15.      Thereafter a book of evidence was served on the applicant on 10th September, 1999. Thereafter an exchange of correspondence ensued between the applicant's solicitors and the Office of the Chief State Solicitor. Having received the information requested the applicant indicated on 14th January, 2000, that he wished to call Mr. McHugh and Mr. Broughall to give evidence on deposition. The non appearance on 14th June, 2000, resulted from an unfortunate oversight in failing to enter the remand date in a diary.

16.      Ms. Loftus denies that there has been any culpable delay on the part of the respondent, his servants or agents such that his rights have been denied or imperilled and she denies that the applicant has been prejudiced such as to hinder the obtaining of a fair trial. She asserts that any delay since the applicant was charged has arisen as a result of the applicant's exercise of his rights in defending the charges against him.

17.      Ms. Loftus was cross-examined on her affidavit. She indicated that the respondent was only happy to proceed against the applicant when the evidence of Martin McHugh was available. She stated that she is not aware of what the respondent's attitude was in 1995.

18.      Ms. Loftus indicated that it was irrelevant as to whether the evidence of Mr.Broughall was available. It was indicated that the evidence of Mr. McHugh only came to light in the course of the garda investigation following the murder of Veronica Guerin in 1996. In 1996 the respondent indicated that he was only happy to proceed when Mr. McHugh had been dealt with. Ms. Loftus indicated that there were no untoward delays in the prosecution of Mr. McHugh and the case against him ultimately resulted in a plea of guilty from Mr. McHugh. He had been charged in 1997. The book of evidence was stated to be enormous. In addition to charges which were the same as those against the applicant there were further charges against him. It appears that the directions to prosecute Mr. McHugh were given by the respondent to the then State Solicitor in Wicklow, Mr. Augustus Cullen on 29th May, 1997.

19.      Ms. Loftus indicated that on 3rd March, 1997, the State Solicitor Mr. Cullen made submissions to the respondent in relation to the perception of the applicant's culpability in the murder of Stephen Murphy and canvassed reasons as to why he might be prosecuted for this offence. These submissions were replied to on 24th March, 1997.

20.      Ms. Loftus indicated in her evidence that the respondent was awaiting the prosecution of Mr. McHugh and finding out if he would be amenable to give evidence against the applicant before issuing any direction in relation to the charging of the applicant. The focus of the respondent was on the murder of Stephen Murphy.

21.      While there are common witnesses to the cases against the applicant and Mr. McHugh it is indicated that there were 29 to 30 prosecuting members in the case against Mr. McHugh. Ms. Loftus admitted that she was not aware what occurred between the end of March, 1998, and the time the State Solicitor wrote to the respondent at the end of August, 1998. The decision taken in December, 1998, was that the applicant should face firearms charges and the respondent decided not to prosecute the applicant on a charge of murder. It was indicated that it appears that the first time the respondent was aware that Mr. McHugh was available to give evidence for the prosecution against the applicant was in March, 1997.

22.      Ms. Loftus indicated that the consideration of March, 1997, was that Mr. McHugh would possibly incriminate himself if he was asked to give evidence at that time. She indicated further that he could have been considered to be an accomplice at that time.

23.      With regard to the period from April to July, 1999, it was stated by Ms. Loftus that it was a matter for the gardaí whether they could find the applicant at that time to charge him. The file in the case was not received in the Office of the Chief State Solicitor until after the applicant was charged.

24.      With regard to the problem of entering in the office diary the date for the taking of depositions in June, 2000, there was some uncertainty as to who was responsible for bringing Mr. McHugh and Mr. Bramwell to court for the purpose of the taking of the depositions as requested by the applicant. It was indicated that the practice in such matters is for the prosecution to bring witnesses in the circumstances of Mr. McHugh to court after agreement with the defence.

Submissions:

25.      On behalf of the applicant it is submitted by Mr. Shane Murphy S.C. that there is no explanation for the sixteen month delay in charging the applicant subsequent to March, 1998. Counsel refers to the fact that there is no explanation for the delay leading to the decision of the respondent in December, 1998, or for the period from March, 1999, when the respondent reiterated his earlier decision that the applicant be charged with firearms offences and not with any charge of murder, to July, 1999, when the applicant was ultimately charged. Further reliance is placed upon the delays in the District Court in particular relating to the non appearance in court in June, 2000.

26.      Counsel submits that there is no evidence that the respondent considered prosecuting the applicant on foot of the evidence of Michael Broughall at any stage and it is submitted that on the evidence it appears that the respondent did not consider the evidence until 1997 some three years after the date of the alleged offence. It is submitted that if the respondent wished to await the outcome of the prosecution against Martin McHugh he was concerned with a ius tertii, namely the rights of Martin McHugh himself and it is submitted that this is a weak basis upon which to postpone any prosecution against the applicant.

27.      Counsel refers in particular to the delay between the end of March, 1997, when the prosecution against Martin McHugh was terminated and July, 1999, when the applicant was arrested and charged. Allied to this delay counsel complains that there was a simple procedure which was not undertaken prior to 1997, namely to assess whether there was sufficient evidence to deploy against the applicant. It is submitted that there is no evidence of any assessment having taken place of the evidence of Michael Broughall prior to 1997.

28.      Particular reliance is placed upon the principles of law enunciated by Finlay C.J. in the case of Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236 together with the High Court judgment of Geoghegan J. in the case of P.P. v. Director of Public Prosecutions [2000] 1 IR 403 and to the judgment of Keane J. in the case of P.C. v. Director of Public Prosecutions [1999] 2 I.R. 45 referred to by Geoghegan J. In addition counsel has relied upon the judgment of Hamilton P. (as he then was) in the case of the State (Brennan) v. Connellan (Unreported, High Court, Hamilton P., 17th June, 1986). Counsel submits that this case is characterised by a pattern of inadvertence and delay or a lack of speed in what he characterises as 'relatively straightforward matters' and draws a comparison with the facts in the case of the State (Brennan) v. Connellan. Further reliance is placed upon the decision of the Supreme Court in the case of B.F. v. Director of Public Prosecutions [2001] 1 IR 656. In that case the Supreme Court held that where there was culpable delay on the part of the state authorities then having regard to all the circumstances of the case, the delay itself could entitle the accused to an order preventing the trial irrespective of whether there was actual or presumed prejudice. Counsel submits that in these two latter cases the courts were concerned with the issue of culpable delay and submits that the instant case is also a case of culpable delay.

29.      It is submitted by counsel that the instant case is one of blameworthy prosecutorial delay which gives rise to a presumption of interference with the right of the applicant to a trial with reasonable expedition and which requires an explanation on the part of the respondent.

30.      Counsel points out that in the prosecution against the applicant there is reliance upon the evidence of Michael Broughall but nevertheless the prosecution who was possessed of his evidence since May, 1994, chose not to prosecute the applicant at the time. Counsel submits that there is a flaw in the respondents case insofar as it is suggested that Martin McHugh may have been required to incriminate himself if called to give evidence in 1996 and counsel points out that he would have had the benefit of a constitutional right not to incriminate himself. Counsel criticises the fact that the respondent favoured the perceived rights of Martin McHugh over those of the applicant and describes this as improper and amounted to a failure to safeguard the applicant's constitutional rights.

31.      Counsel submits that there has been a gross delay on the part of the prosecution since the determination of the prosecution against Martin McHugh. It is submitted that the prosecution failed to act with alacrity and that there was a lengthy delay while the file was lost. In addition counsel complains of a further delay while the gardaí and the Chief State Solicitor sought a review of the respondent's decision not to have the applicant charged with murder. It is submitted that the fresh delay compounded the earlier delay and amounts to a violation of the applicant's rights.

32.      Further reliance is placed by the applicant on the delays in the District Court which relate to a delay in the system such that six months elapsed before the depositions requested could be taken and the additional delay on the part of the prosecution resulting from the failure to diary the remand date of 14 June, 2000. The total delay in question was from fourteen January, 2000, to 29th November, being a period of almost eleven months. This is categorised by counsel as a gross aggravation of the delay which already permeated the case.

33.      Counsel further refers to the delays which occurred in the case of Cahalane v. Judge Murphy [1994] 2 I.R. 262 and submits that the overall delay in the instant case amounts per se to a violation of the applicant's constitutional rights to an expeditious trial. Counsel submits that insofar as reliance is placed upon prosecutorial delay that there is no obligation on the applicant to show actual prejudice. Without prejudice to this submission it is submitted that the applicant has suffered prejudice insofar as he has married and moved away from those with whom he previously associated in the motorcycle fraternity. It is submitted that this loss of contact impinges on his ability to call witnesses. In addition reference is made to the claim that since being charged the pressure of the proceedings has led to a separation from his wife.

34.      On behalf of the respondent, counsel refers to the fact that the charges against the applicant arose out of the murder of Stephen Murphy on 1st May, 1994. The applicant was arrested on 28th May, 1994 on suspicion of unlawful possession of a firearm and detained under s. 30 of the Offences Against the State Act, 1939, and thereafter released without charge.

35.      On 26th June, 1996, in the course of the investigation into the murder of Veronica Guerin, Martin McHugh was arrested under s. 30 of the Act of 1939. In the course of his detention at the time he made statements linking the applicant with Mr. Murphy's murder and with the murder weapon. On 26 September, 1996, the applicant was re-arrested and detained under s. 30 of the Act of 1939 again on suspicion of having had unlawful possession of firearms but was again released without charge. It is pointed out that a reading of the book of evidence shows that matters put to the applicant at the time indicated that a case was being made against him on the basis of the information supplied by Mr. McHugh.

36.      Counsel submits by reference to the decisions of the Supreme Court in the cases of Z. v. D.P.P. [1994] 2 I.R. 476 and D. v. D.P.P. [1994] 1 I.L.R.M. 435 that the onus of proof lies upon the applicant and to justify a permanent stay of criminal proceedings there must be a permanent defect which goes to the root of the trial 'of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences'. Particular reliance is placed upon the Supreme Court decision in the case of McNamara v. MacGruairc and others (Unreported, Supreme Court, 5th July, 2001) where the Court considered that the delay in the case was excessive but nevertheless the court concluded that the delay did not prejudice the applicant and on this basis the applicant was refused the relief which he sought. In similar vein, counsel for the respondent relies upon the decision of Kelly J. in the case of McKenna v. Presiding Judge of the Dublin Circuit Criminal Court (Unreported, High Court, Kelly J., 14^th January, 2000) which decision was affirmed ex tempore by the Supreme Court on appeal on 7th December, 2000. In that case the High Court found that there was "inordinate and inexcusable delay" of some five and a half years in the prosecution of the applicant but nevertheless the court refused the relief sought by the applicant. It is submitted that the applicant has failed to establish a sufficient basis for the relief which he seeks notwithstanding the delay complained of. It is submitted that he has not been prejudiced and the delay complained of is not such as to preclude the applicant obtaining a fair trial or a trial with reasonable expedition in the circumstances. Counsel submits that the decision not to charge the applicant until the prosecution against Martin McHugh had concluded was a proper decision and justifies the delay or passage of time complained of in the instant case. Counsel further relies upon the evidence of the two arrests of the applicant under s. 30 of the Act of 1939 as clearly demonstrating to the applicant that the matter was being investigated by the gardaí and remained under investigation and in these circumstances the applicant was not deprived of an opportunity of preparing a defence to any charges that might be preferred against him.

37.      While counsel for the respondent concedes that there has been some delay in this case he says that the court must take into account the explanation given for at least some of the period complained of.

38.      Counsel submits that the case of P.P. v. Director of Public Prosecutions [2001] 1 I.R. 403 is in no way comparable to the instant case as what the High Court was concerned with in that case was a clear prosecutorial delay on top of a significant period of time during which the complaint did not come forward to make a complaint to the Gardaí.

39.      Counsel further distinguishes the facts of the instant case with those in the case of B.F. v. Director of Public Prosecutions relied upon by the applicant. In that case the particular circumstance relied upon by the Supreme Court was the young age of the appellant (fourteen) at a time when it was alleged he had committed the offences against him. The court held that in that case the appellant had a well-founded hope that he might not be brought for trial. It is submitted that these circumstances are absent in the instant case.

Conclusion:

40.      In the first place I am satisfied that there was no obligation on the prosecution to charge the applicant at a time when it first had the evidence of Michael Broughall. While his evidence was available since 1994 the issue whether this was considered sufficient appears to be answered by the clear decision which was taken thereafter not to charge the applicant until the evidence of Martin McHugh was available to the prosecution. While it might be said that Martin McHugh might have availed of the right not to incriminate himself, it is self evident that until the charges against him had been determined there was no reality in relying upon his evidence. It appears furthermore that he might have been described at the time as an accomplice and reliance upon his evidence in the absence of corroboration would also have presented a problem for the applicant.

41.      Clearly it is a matter for the Director to decide upon what evidence he will prosecute any particular charge and in the instant case it is clear that he decided not to prosecute the applicant at a time until after the evidence of Martin McHugh was available. I believe that it is not the function of this court to substitute its view for that of the Director who is charged at law with the decision who, when, with what charge and on what evidence to prosecute in any case. I am satisfied that the applicant has failed to show that the decision reached in the instant case was one which was not permissible.

42.      With regard to the initial period following the conclusion of the prosecution of Martin McHugh, I am satisfied that there has been no clear explanation of why it took from the end of March, 1998, to August, 1998, before the Chief State Solicitor informed the respondent that the charges against Martin McHugh had been concluded and that he was available to give evidence against the applicant. It is clear that the period from August to December, 1998, is only partly explained by the fact that the original file in the respondent's office went missing as it is clear that the Chief State Solicitor considered it necessary to remind the respondent of his earlier letter in December of that year, albeit some days after a decision in fact had been taken by the respondent to prosecute the applicant with the firearms offences ultimately preferred against him. Again seven months passed before the applicant was ultimately charged and while this is partly explained by the fact that gardaí considered that the respondent should prosecute the applicant with more than the firearms offences.

43.      In addition to these periods, it is clear that some delay was caused in the prosecution of the offences against the applicant due to the non attendance in the District Court on 14th June, 2000.

44.      The essential issue is whether the delay since March, 1998, is such as to abrogate the applicant's right to a trial with reasonable expedition.

45.      With regard to the alleged prejudice suffered by the applicant, I am satisfied that the applicant has failed to establish any actual prejudice arising from the delay complained of. The applicant fails to indicate when he married or when he separated. With regard to the fact that the applicant has lost contact with previous associates, he fails to indicate when this happened and what, if any effort, he has made to resume this contact, assuming it has any relevance to the instant case. The applicant has failed to show what if any benefit would be derived by him were he to resume the contact with his former associates in the motorcycle fraternity. I am satisfied that there was no reason given by the respondent to believe that he might not face charges in relation to the possession of firearms in 1994 and insofar as the applicant has indicated that he married at some time prior to the date when he was charged, he fails to show that he would not have married had he been aware that he might ultimately be charged. Furthermore, the applicant has failed to identify any witness who might have been in a position to give evidence on his behalf but who is not now available to give evidence.

46.      While cases involving lengthy delays in reporting allegations of sexual abuse have focused on the same constitutional right to a trial with reasonable expedition, it is clear that those cases bear no resemblance to the instant case. Each case clearly has to be examined in the light of its own facts. I believe that the instant case clearly falls into the same category of case as those of McNamara v. MacGruairc and McKenna v. The Presiding Judge of the Dublin Circuit Criminal Court. I am satisfied that the instant case is categorised by some prosecutorial delay which is excessive but also by a situation where the applicant has failed to show any particular prejudice to have been suffered by reason of this delay and in these circumstances I am satisfied that it cannot be presumed that the applicant has been prejudiced such that he has been deprived of a trial with reasonable expedition such that a fair trial cannot now be held. In these circumstances I am satisfied that the applicant has failed to satisfy the onus that rest upon him and accordingly I refuse this application.