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Cite as: [2004] IEHC 246

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[2004] IEHC 246

1999 400 JR

THE HIGH COURT

DUBLIN

BRENDAN McFARLANE

Applicant

AND

DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

MR. JUSTICE O CAOIMH DELIVERED JUDGMENT AS FOLLOWS ON 18TH JULY 2003.

This matter comes before the Court pursuant to an order made by Ms. Justice McGuinness granting to the applicant leave to bring an application for judicial review for various reliefs.

The relief sought includes, in the first place, a declaration that the delay in the institution of criminal proceedings charging the applicant with the offences as set fourth in Bill No. SP 001 of 1998, which such offences are set out prior the dates unknown between 25th November, 1983, and 16th December, 1983, which are prejudical pending before the Special Criminal Court as irreparably prejudical to the prosecution of the applicant obtaining a fair trail. secondly, a declaration that the failure on the part of the prosecuting authorities to maintain and have available for inspection exhibits identified in the book of evidence, has limited the ability of the applicant to fully contest the nature and strength of the evidence proposed to introduce at the trial.

Thirdly, an order prohibiting the Director of Public Prosecutions from taking any further steps in the prosecution against the applicant.

Fourthly, an injunction restraining the Director from taking any further steps in the prosecution.

The essential matter raised on this application, which amounts to an application to restrain the Director from further prosecuting the applicant, are the issues of delay in the first place and the destruction of evidence in the second place.

The applicant makes the case that the delay in bringing fourth his trial and having him charged in the first place, has resulted in a situation where he cannot obtain a fair Tribunal.

There has been a long history as the situation insofar as it is indicated is that the offences in question which are relatively serious offences in relation to possession of firearms and with possession of firearms with intent to endanger life and false imprisonment are alleged, as already stated, to have taken place in 1983.

The applicant makes the case that at the time of his arrest he was in control from the Maze prison in Northern Ireland having served 19 years of a sentence imposed by the courts of Northern Ireland. He makes the case that since 1993 he had been granted parole by the authorities in Northern Ireland and on the date of his arrest was in this jurisdiction on holidays with the knowledge of the Northern Irish authorities.

The applicant says that the delay between the date of the alleged offences and the date of when a trial make take place and the effect of the unavailability of certain exhibits have resulted in a situation where he cannot obtain a fair trial.

The applicant's case is grounded not upon an affidavit sworn by himself, but an affidavit sworn by his solicitor, Mr. McGwill, who details the history of the matters and points out the circumstances in which the Applicant was arrested prior to being charged with these offences.

He makes it known to the court that the applicant had escaped from lawful custody from the Maze prison on 25th September, 1983, and unsuccessfully contested extradition proceedings from the Netherlands in December of 1986.

He points out that subsequent to those extradition proceedings, the applicant served a term of imprisonment handed down by the courts in Northern Ireland.

With regard to the issue of delay, counsel has advanced various submissions on behalf of the applicant, relying upon the contention that the applicant could have been tried in Northern Ireland pursuant to the provisions of the Criminal Law Jurisdiction Act 1976 and he submits that in the process of the circumstances of the instant case, that he should have been so tried rather than await a situation where he would have been arrested after a lengthy period of imprisonment in Northern Ireland.

A number of authorities have been cited by counsel in support of the contentions and in this regard counsel submits, based upon general authorities dealing with the issue of delay, that the applicant cannot now obtain a trial in the due course of law as understood as meaning a trial with reasonable expedition.

While the courts, in general, have addressed the issue of delay on an incessive basis in cases where there had been a long period of time elapsing from the date of the alleged offences and the time that the offences come on for trial, these have, in the main, been addressed in cases of clear prosecutorial delay or in circumstances which arise in a frequent number of cases coming before the courts today of delay resulting from a situation of a child sexual abuse, charges not coming to light until many years after the event.

On behalf of the Director of Public Prosecutions, particular reliance is placed by counsel upon the jurisprudence of this court and of the Supreme Court and, in particular, on the decisions in the case of O'FLYNN -v- CLIFFORD [1989] I.R, 524 in which it was indicated that no person has a right to be charged with a particular offence at any particular point in time.

The decision when to prosecute is clearly a decision that rests with the prosecuting authorities and this will, naturally, depend upon the assembly of relevant evidence and a belief that sufficient evidence exists to prosecute a particular person who is suspected of crime.

The case made on behalf of the respondents, is that they wished to interview the applicant and it was only upon interviewing of him that they obtained other evidence which supported the case which they seek to make against him which resulted in a direction being given by the Director of Public Prosecutions that he be charged with the offences against him.

On behalf of the applicant, it was submitted that he could have been interviewed while in custody in Northern Ireland. While at a theoretical level that may be true, I think the situation there would have been quite different to the circumstances of an arrest pursuant to the powers vested in the gardaí which would, in the instant case, have given rise to certain powers within the gardaí to interrogate or question suspects. Undoubtedly a significant period of time has elapsed from the time when the offences alleged against the applicant were committed and this now amounts to a period of 20 years.

I am satisfied on the evidence before the court that the decision taken not to prosecute the applicant at the earlier time which decision clearly rests with the prosecuting authorities - and no case has been made out of a deliberate course of action to engage in an unfair process of postponing the charging of the applicant at any period of time - was taken in circumstances where it is quite clear that the decision to charge the applicant arose after the obtaining of further evidence relied upon in this particular case. In light of that fact, I believe that the respondent is correct in the submission that has been advanced by counsel on his behalf, that the applicant is not entitled to the relief which he seeks grounded upon the delay complained of.

I do not accept that the actions of the prosecuting authorities or the gardaí in this case have resulted in a violation of the applicant's right to a trial with reasonable expedition.

It is clear from the authorities in this jurisdiction that a significant difference exists between the issue of delay prior to charging and a delay subsequent to the charging period. The delay in the instant case complained of relates entirely to a period before the applicant was charged.

In this regard counsel has referred the Court to the judgement of Cannon J in O'Flynn -v- Clifford [1983] I.R 740, which was determined on appeal by the Supreme Court, and in which he drew the distinction between the stage before charge and the period after charge.

While counsel for the applicant has referred to a recent case of a charge of sexual abuse by the courts restraining the further prosecution of the accused - the case of P.M -v- Malone [2002] 2 IR 560 refused the case of P.M -v- Malone [2002] 2 IR 560, I believe that the circumstances of that case are peculiar to the facts of that case and do not establish a general principle, such as to result in a change from the decision of the Supreme Court determined the High Court in the case of O'Flynn -v-Clifford.

In that particular case the peculiar circumstances were that the applicant had been confronted, many years before being charged, with the substance of the complaint and no action was taken at that time.

Dealing with the issue of delay, I believe that the applicant's case is not made out and I am not disposed to grant him the relief on that basis.

The second aspect of this case relates to a situation where a number of items of evidence which was held by the garda authorities and which, apparently, from reading of the book of evidence in this case included fingerprints matching those of the applicant were found, but were ultimately lost by the Garda Siochana having been held in their custody for a considerable period of time.

The fact that the items were held in custody I think bears out the fact that the items were considered to be of important evidential nature. Is quite clear that the loss of these items resulted not from any clear decision to dispose of the items on the part of the garda authorities, but due to some want and care at a time when the premises were being renovated. The situation has been referred to in evidence put before the Court on behalf of the respondents and it is indicated in particular in an affidavit of a retired Detective Garda Morris Boyle that on the 17th December, 1983, he took possession at Drumcronin Road, Ballinamore, Co. Leitrim of cooking utensi1s, groceries and wrappings from a hideout used to imprison the person who was imprisoned at the time, Mr. Tidey. It appeared that a number of fingermarks were developed upon examination of these items and these were handed over and resulted in a situation where they were photographed but the items themselves were destroyed. The relevant exhibits were a one litre milk carton, a plastic container and a cooking pot.

It is indicated by the retired detective garda that he went to the fingerprint section in 1998, at a time when he was requested to return these particular items and discovered that the fingerprint section had been refurbished to accommodate computerisation of fingerprints. The storage room where the exhibits had been held had become a library and a conference room and he was informed that the exhibits which had been held in the area had been relocated to the basement of the premises. He said that he called for a complete and thorough search of the technical bureau to include the basement area. He points out that this search had proved negative and consequently, he has not been able to retrieve these items. It is in these circumstances that the relevant items are not available for inspection by the applicant for or on his behalf.

The issue therefore arises, whether by reason of the loss of these items the respondent should be restrained from further prosecuting the applicant in relation to the charges against him. The issue in relation to the loss or destruction of items of evidence has been addressed by these courts on a number of occasions in recent years.

In the first place, in the case of Murphy -v Director of Public Prosecutions [1989] ILRM, 71, Mr. Justice Lynch addressed the issue in relation to the preservation of evidence and indicated that evidence relevant to the guilt or innocence must, as far as is necessary and practicable, be kept until the conclusion of a trial. He says that this principle applies to the preservation of articles which may give rise to a reasonable possibility of securing relevant evidence.

This decision, which as indicated was delivered in 1989 reaffirmed law which had been decided 100 years previously in the case of Dillon -v- O'Brien & Davies (1887) 20 L.R 300, which was approved by him in the course of his decision.

In that particular case the Chief Baron stated in the course of his judgement, that the interest of the state and the person charged and being brought to trial in due course necessarily extends as well to the preservation of material evidence of guilt or innocence as to his (inaudible) of further trial.

In the course of the judgment delivered by Mr. Justice Lynch he also reviewed the decision of R v. Lushington Ex Parte Otto (1894) 1 QB 423, (1) QB where Wright J ruled and he quotes as follows:

"I take it that it is undoubted law that it is within the power of and is the duty of constables to retain for use in court things which max be evidences of crime. .. I think it is also undoubted law that when articles have once been produced in court by witnesses, it is right and necessary for the court, or the constable in whose charge they are placed to preserve and retain them so that they may be always available for the purposes of justice until the trial is concluded."

The particular facts of the case of Murphy related to the disposal of a motor vehicle which had been damaged and in the course of that case, Lynch J indicated, that the gardaí ought not to have parted with the possession without examining forensically in terms of -- he should have notified the applicant's legal representatives with an intention of giving it back to the insurance company which is what happened in the particular case.

I think what is to be retained, as opposed to what may be disposed of, must be decided on a case by case basis.

It is quite clear that a very large amount of material is stolen and the gardaí are not required to retain all that property which may be sought by the owner of it until after the trial.

Again in the case of a car, the owner of a car is not necessarily to be deprived of possession of his car for a long period of time pending a trial and, of course, this is something that clearly has to be dealt with on a case by case basis.

Another situation that may arise is that items stolen could be perishable in nature and, again, there is no suggestion that any such item has to be retained.

However, in the instant case it is quite clear, that the items in question were not perishable and were not such that they were sought by any other person and they were retained by the gardaí for a long period of time, something in the order of 15 years. However, the items in question, we now know, have been lost.

The most recent decisions dealing with the loss of items coming before these courts are the case of Braddish -v- Director of Public Prosecutions [2001] 3 IR 127 and more recently the case of Dunne -v Director of Public Prosecutions [2002] 2 IR 305 which affirms the decision in Braddish.

In the case of Braddish a video tape was received by the gardaí and lost. Notwithstanding the fact that photographic stills had been taken from the video and notwithstanding the fact that the applicant in that particular case had signed a statement admitting his guilt, the Supreme Court, in delivering judgment in that case held, that the applicant's trial should be prohibited or restrained on the basis of the loss of the item in question.

The court indicated that evidence relevant to guilt or innocence must, as far as is necessary in practicable, be kept until the conclusion of the trial and that this principle applies to the preservation of articles which could give rise to a reasonable possibility of securing relevant evidence.

Secondly, the Supreme Court held that the absence of vital and direct evidence could not be relied upon by the prosecution which preferred to rely on an alleged confession and that real evidence should not be disposed of before a trial.

It was also held that the gardaí were under a duty, arising from the unique investigating role, to seek out and preserve all evidence having a bearing or potential bearing on guilt or innocence.

The Braddish decision and further following the more recent decision of the Supreme Court of Dunne -vDirector of Public Prosecutions in which the Supreme Court held that an accused person has a constitutional right to a fair trial, indicate that the applicant must establish that there is a real or serious risk of an unfair trial.

In that particular case, which also related to the obtaining of video evidence, the court restrained further prosecution.

Now in the instant case, while it is clear that the items have not been retained there was, nevertheless, a forensic examination, of them and the issue arises whether by reason of this forensic examination, it can be said that the Applicant can now obtain a fair trial or whether for the reason of the loss of the items in question this court should follow the decision in the case of Braddish -v- Director of Public Prosecutions.

I have come to the conclusion that I am bound by the decision of Bradish -v- Director of Public Prosecutions by reason of the failure on the part of the garda authorities to retain the items in question. I believe that it has clearly resulted in a situation of the loss of vital evidence and it is

In these circumstances that is I believe that the applicant is entitled to the relief which he seeks.

Approved: Ó Caoimh J.