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Cite as: [2004] IEHC 126

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THE HIGH COURT

JUDICIAL REVIEW

Record Number: 2003 No. 596 JR

Between:

Ameda Bakoza

Applicant

And

The Judges of the Dublin Metropolitan District Court

And The Director of Public Prosecutions

Respondents

Judgment of Mr Michael Peart delivered the 14^th day of July 2004:

By Order made the 31st July 2003, Mr Justice Herbert granted to the applicant leave to seek Orders of prohibition prohibiting the Respondents from taking any further steps on foot of two Charge Sheets in respect of two separate offences, the first of which is that on 25^th April 2001 he was in a public place while intoxicated to such an extent as would give rise to a reasonable apprehension that he might endanger himself or any other person in his vicinity, and the second being in respect of his failure to appear in Court on the 3^rd May 2001 in respect of the first offence, having been released on bail and entering into a recognizance.

The Grounds upon which leave has been granted in respect of these reliefs are principally that there has been considerable and inordinate delay in the execution of the warrant dated 3^rd May 2001 which issued from the District Court following the applicant's failure to appear in the District Court on that day in respect of the charge in question. It is contended that there is no lawful excuse for the delay in executing the warrant, and that the applicant has not contributed to the failure to execute the warrant in view of the fact that his address was always capable of being ascertained by the Garda Siochana, because while undoubtedly he moved from address to address during the period involved, he was always in receipt of Social Welfare Benefit, and the addresses at which he was residing were always known to the Department of Social Welfare.

He also states that he was not familiar with the criminal processes and thought that he would be notified of when he was required to attend court.

The applicant also states that on 9^th February 2002 he was arrested again by the Garda Siochana in relation to an offence of possession of cannabis for the purpose of sale or supply, and that he appeared in the District Court and Circuit Criminal Court on a number of occasions throughout 2002 and 2003, and the Bench Warrant could have been but never was executed until 6^th June 2003. This means that from the date of its issue on 3^rd May 2001 until its execution on 6^th June 2003, a period of about two years and one month elapsed.

The applicant says that this delay is inordinate and inexcusable. He also states in his grounding affidavit that he has thereby suffered prejudice in relation to his Defence in relation to the matter, consisting of the fact that he "cannot recollect due to the passage of time." I take that to mean that he cannot recollect the particular occasion on the 25^th April 2001 when he was arrested and charged with this offence, rather than that he can recollect nothing around that time. However, he also states that he would now be further prejudiced if these charges were proceeded with since his circumstances have changed since April 2001 since his wife was at that time not in employment, and could look after their young daughter, who by the date of swearing of the grounding affidavit was three years old. It appears that his wife is now in employment and the applicant states that he is now required to look after their daughter.

It is submitted that there is an obligation on members of An Garda Siochana to execute Bench Warrants with expedition, and to make all necessary and reasonable enquiries to ascertain the whereabouts of persons subject thereto. The failure of An Garda Siochana to make those reasonable and necessary enquiries in this case is such that it would be a breach of the applicant's right to an expeditious hearing in respect of the charge in question, and as such the Orders sought should be granted.

The Respondent on the other hand submit that there has not been any inordinate, considerable and inexcusable delay in the matter, and that the Gardai took all reasonable steps to execute the Warrant, and the fact that they were unable to do so resulted not from any lack of effort or diligence on their part, but rather from the fact that the applicant laid low by moving from address to address without notifying them, and was in effect evading his arrest on foot of the warrant. They also refute the suggestion that the applicant could be in any way prejudiced by the delay in the execution of the warrant.

An affidavit has been filed by Gda. Ronan Barry, the member of an Garda Siochana who arrested the applicant on the 25^th April 2001. he states that when he was released on bail from the Garda Station the content of the bail bond was explained to the applicant by another member, but in his presence. He submits that the bail bond clearly stated that he was required to appear in the District Court on 3^rd May 2001, and that this was re-iterated to the applicant before he left the station. He further avers that neither he nor the other member ever told the applicant that he would be notified in due course when he was required to attend court.

Garda Barry goes on in his affidavit to state that following the issuing of the Bench Warrant, he made "several attempts" to execute the warrant by calling to the address given by the applicant. His first call was a few days after the warrant was issued, and that there was no answer at the door when he called, but that neighbours informed him that the applicant had not been seen for a few days, but that he still resided there. He says that he called on a number of other occasions but that the applicant was not there on any such occasions. He states also that when he called to that address he left a calling card asking him to contact the Garda Station at Kilmainham and gave the telephone number. The applicant never made contact. He states that "a number of weeks after the bench warrant issued" he spoke with new tenants in the address given by the applicant and he was informed by them that the applicant "no longer resided at that address and had not resided at that address for some time." No forwarding address was left. Garda Barry then says that he gave the new tenants a calling card and that they undertook to forward the details to the applicant if they came into contact with him, or to contact him with a forwarding address "if they came across one. He states that after the bench warrant issued he carried out a Garda PULSE check and noting came up in respect of the applicant. Overall, Garda Barry is of the view that over a protracted period he made "necessary and reasonable enquiries" to locate the applicant, and that he was not the Garda involved in the later arrest of the applicant on the 9^th February 2002 and had no involvement in those proceedings.

An affidavit has also been filed on behalf of the respondents by Det.Garda Frank O'Neill of the Garda National Drugs Unit. He states that he obtained another Bench Warrant from the Circuit Court on the 21^st January 2003, and that he executed same on 15^th May 2003. He states that in May 2003 he attended at the Warrants Office at the Bridewell Garda Station in order to obtain that Circuit Court Bench Warrant, and that while there he became aware of the earlier warrant from the District Court dated 3^rd May 2001, and made the necessary arrangement to execute that warrant as soon as possible. He made the arrest on foot of that warrant on 30^th May 2003. He then makes certain observations about the address of the applicant as given by him at the time of his arrest in February 2002, and points to the fact that, in addition, in February 2002 when arrested the applicant seems to have given an incorrect spelling of his name, and that this demonstrates a pattern of evasion on the part of the applicant in respect of his dealings with the Gardai, rendering it difficult to track down the applicant and execute the warrants. He says that the PULSE system was not available to him in February 2002 when he arrested the applicant at that time.

The solicitor acting for the applicant has sworn an affidavit also giving information which he has obtained from the Department of Social Welfare about where the applicant lived on different dates from time to time during the relevant period, and he states that this information would also have been available to the Gardai if they had made reasonable enquiries.

By way of legal submissions, Mr Conor Devally SC on behalf of the Applicant has stated that the execution of a warrant from the District is a serious matter to be undertaken with expedition and urgency by An Garda Siochana, and that it is not something which can be done as a matter of discretion. He submits that there is a positive duty to execute warrants immediately. In support of this submission, Mr Devally referred the Court to the judgment of Carney J. in Dunne v. The Director of Public Prosecutions, unreported, High Court, 6^th June 1996 wherein the learned judge described the status of a warrant in the following terms:

"A warrant of apprehension is a command issued to the Gardai by a Court established under the Constitution to bring a named person before that Court to be dealt with according to law. It is not a document which merely vests a discretion in the Guards to apprehend the person named in it; it is a command to arrest that person immediately and bring him or her before the Court which issued it. That it is a command rather than merely an authority or permission to arrest can be clearly seen from the terms of the warrant in the instant case."

In that case the learned judge noted that the terms of the warrant specified that the person was to be arrested "and bring him without any delay before me or another Justice or Peace Commissioner to be dealt with according to law." (my emphasis)

I just note in passing that the warrant in the present case makes no reference to "without any delay".

The learned judge also expressed the following view:

"I have on more than one occasion formed the view that the Guards do not have a full appreciation of the mandatory duty they are under to execute warrants and a full appreciation that warrants are commands to arrest and not merely authorities to arrest. It seems to me from time to time that the Guards have sat on a warrant and waited for the wanted person to gratuitously fall into their laps by, for example, being arrested in relation to a further crime rather than taking any active steps to find him."

That learned judge referred to the remarks of another learned judge, namely Barron J. who had in another case, The State (Flynn) v. The Governor of Mountjoy Prison, unreported, High Court, 6^th May 1987 made comments of a like nature in the context of a warrant not executed with dispatch, including as follows:

"I have no doubt that if there had been any real effort made to find the defendant he would have been found and the warrant executed."

Mr Justice Carney having made the comments which he made went on to state that nonetheless the issuing of a warrant "need not trigger a national manhunt". He noted also that there was no prejudice to the applicant by any delay which took place, and having regard also to what he saw as a choice on the part of the applicant to "lie low" and having regard to certain misrepresentations on the part of the applicant's father in that case, he refused the application sought. In that case the delay was just approximately two years and four months. The Garda by chance observed the applicant in the District in connection with another matter, and he had initially after the warrant had been issued made a number of attempts to arrest the applicant at his home, but was satisfied that the applicant no longer resided there. No other active efforts had been made to locate that applicant, though the Garda in question stated that he remained on the lookout for him.

It is to be noted that in the case just referred to the applicant had never been arrested for the alleged offence and released on bail as in the present case. The Garda had sworn an information in the District Court which led to the District Judge issuing a warrant for his arrest.

Mr Devally also referred the Court to the judgment of Mr Justice Herbert in Casey v. The Governor of Cork Prison, unreported, High Court, 13^th September 2000. In that case the applicant had been convicted on two charges in May 1997 and sentenced to two periods of imprisonment. An appeal was lodged, and the appellant was released on bail pending the determination of that appeal. He failed to appear at the appeal which was then struck out. Committal Warrants were signed on 31^st October 1997, but were not executed until May 2000 – a period of two years and about seven months. The learned judge was of the view that an excessive delay was prima facie evidence of a breach of fair procedures guaranteed by Article 40.4.2 of the Constitution, and that what would amount to such excessive delay will depend on the circumstances of each particular case, and that in considering this matter the Court was entitled to have regard to the explanations given for the delay in execution, and to consider whether in the light of it and the convicted person's right to have the warrant for committal served upon him as soon as is reasonably possible. In addition the Court was entitled to take into account any admissible evidence that such delay resulted from evasion on the part of the convicted person.

There was evidence in that case which is similar to that given in the present case by Garda Barry, namely of having called to the address of the person on a number of occasions, that on two occasions there was no reply and another occasion when the Gardai were told by a woman there that he no longer resided there but no forwarding address was disclosed. It appears that the person had gone to reside in Cork, and while there resided in three different addresses, but had not so notified the Gardai. He in due course returned to live in Limerick and remained there until his arrest. There was also evidence that prior to his arrest he had been in touch with the Gardai in relation to an investigation of another crime and that he had made a statement, but the Gardai involved in that investigation were not the same members involved in the execution of the Committal warrants.

Mr Justice Herbert states at page 8 of the unreported judgment:

I believe it to be significant that the applicant offers no explanation for his departure from Limerick in November 1997; for his choice of Cork as a place of residence; or for his return to Limerick. He provides no information regarding his activities in Cork, or how he maintained himself there. He does not say why he left no forwarding address at 9 Gerard Street, Limerick………………In my judgment, it appears more than somewhat incredible that if, as he says, he remained in contact with members of An Garda Siochana at Henry Street Limerick Garda Station, during this period, he never once heard from or enquired from any of them about his Appeal."

Having expressed considerable concern at the fact that while the applicant in that case was assisting the Gardai in Limerick in relation to another matter the relevant Gardai handling the execution of the Committal warrants were not made aware of that fact, and noting also that the while the former had enquired of the applicant himself as to whether there were any warrants out for him, and him responding in the negative, those Gardai had checked the matter no further in their own Garda records, the learned judge decided that the delay was such as to amount to unfairness, since while there were explanations from the Gardai as to why internal communication within that Garda Station had not occurred, those explanations could not sufficiently excuse the delay involved. In this regard he stated:

"In my judgment administrative or communications failures occur from time to time in connection with the execution of warrants: the system for the enforcement of Court Orders is sufficiently complex to admit of such mishaps. However, in considering whether it amounts to a satisfactory explanation for delay, the duration of any such failure must be a critical factor to be taken into account. There must come a time in each case, depending upon the particular circumstances of that case, when delay if occasioned by such a failure passes from being reasonably explicable and not unfair to the convicted person to being no longer reasonable or capable of satisfactory explanation and manifestly unfair to the convicted person."

The learned judge found for the applicant on the basis that the delay was excessive in all; the circumstances and amounted to an unfairness and a denial of the right to fair procedures guaranteed under the Constitution.

That case has a number of features in common with the present case:

1. The Gardai attempted to execute the warrants soon after they were made, and at the only address which they knew of;

2. There was no answer on two occasions, and on the next occasion they were told by somebody there that the applicant had moved out, but no forwarding address was given;

3. The applicant had moved to Cork but failed to tell the Gardai his new address as he moved about Cork to different addresses from time to time;

4. He had, during the delay period, further contact with the Gardai in relation to another matter, but never enquired about the outstanding matter, and never told them of the Warrant which he must be presumed to have known would exist;

5. There was no communication between the Gardai dealing with the warrants and those dealing with the other investigation;

6. the delay was in total was two years seven months (albeit that a period of one year and eight months was found to be due to the applicant's own conduct – and about seven/nine months due to Garda inactivity).

7. The delay is explained partly by the behaviour on the part of the person concerned, and partly by the failure of one section of the Gardai to share information or communicate information with another.

There are also some distinguishing features:

1. In the present case, a Bench Warrant issued as a result of a failure to appear prior to any conviction, whereas in the previous case the person had been convicted, and had failed to prosecute his appeal;

2. In the present case the applicant is a foreigner, alleged to be at that time unfamiliar with the criminal procedures here;

3. In the present case, the Gardai dealing with the Bench Warrant were not attached to the same Garda Station which was handling the other charge;

4. In the present case the applicant made no secret of his whereabouts in the sense that the Department of Social Welfare was aware at all times of his different addresses, since he was claiming a rent allowance and presumably other benefits.

Mr Devally has urged upon the Court that in considering where the balance of fairness lies, I should take account also of the nature of the charges which gave rise to the bench warrant in the first place, namely public order offences. He submits also that if the applicant has contributed in any way to the delay in executing the warrant, that contribution ceased in February 2002 when he again became known to the Gardai in relation to another matter. He submits that from that time the delay is entirely laid at the door of the Gardai who must have known where he was, and could have kept in touch with him by easy enquiry from the Department of Social Welfare. He submits that from February 2002 to the date of arrest in June 2003 (thirteen months) the delay occurred solely because of one branch of the Gardai not knowing what the other branch was doing, and that no enquiry was even made. He also points to the fact that even from May 2001 when the bench warrant was issued, there is not the deliberate pattern of behaviour on the part of the applicant which could be regarded as evasion. It is true that he never communicated with the Gardai as to his whereabouts and never enquired as to the fate of the matter in respect of which he had been arrested in April 2001, but Mr Devally submits that the fact that he is foreign and unfamiliar with procedures and was expecting to receive word as to when he had to appear in court should be taken into account as excusing factors in assessing his own contribution to the delay in the execution of the warrant.

It has also been submitted that the applicant has been prejudiced in his Defence of the charge by the delay since the applicant cannot recollect the occasion, and then there is also the fact that since his wife is now working he has to mind their young child.

Mr Cian Ferriter BL on behalf of the respondents accepted of course that there is a duty to make enquiries but raises the question as to who owns that duty. In this regard he points to the fact that the Warrant is addressed to the Superintendent of the Bridewell Garda Station, and that at the time the applicant was not within his area, but rather in County Louth. He also referred to the fact that for the very reason that this was the applicant's first encounter with the law, the matter would have been seen by him as of the utmost gravity, even if the charges themselves are not of the most serious nature, and that in those circumstances, it is not credible that he would have simply been waiting for the Gardai to tell him when he had to go to Court and would not have made his own enquiries if he had any doubt about the matter. Mr Ferriter submits that the applicant's behaviour is entirely consistent with a deliberate evasion. It is submitted that the obligation upon the Gardai is to take all reasonable steps to locate and arrest the person the subject of the warrant, and he submits that the affidavit of Garda Barry disclose the efforts made, and which he submits were reasonable efforts in the circumstances. He refers to the comment of Carney J. in the Dunne case that a warrant "need not trigger a national manhunt". He points to the fact that when the applicant came to the attention of the Gardai again in February 2002, it was Crumlin Garda Station and not the Bridewell which was involved, and therefore that it was reasonable that Crumlin Gardai would not be aware of the outstanding warrant against the applicant. He also mentions that the PULSE system was not in operation at that time.

As far as the respondents are concerned, they are of the view that the reason why the warrant was delayed in its execution was solely because the applicant chose for obvious reasons not to engage with the process, and that it is not open to him therefore to rely on some alleged prejudice, even though it is not accepted that there has been prejudice. Mr Ferriter submits that it is an unfair onus upon the Gardai to expect that they should make enquiry of the Department of Social Welfare in an effort to locate the applicant. He makes the point that if there is that obligation upon them, does it extend to making enquiry of other government departments, and possibly non governmental agencies, if no information was forthcoming from that Department. Such an obligation in his submission would exceed what would be a reasonable requirement.

Conclusions:

First of all I find that the delay in this case is an inordinate delay. It is a delay from may 2001 to 6^th June 2003, which has to be prima facie a denial of the applicant's rights to fair procedures. However, I do not accept that the applicant is innocent in the matter of the delay which took place, either up to February 2002 or thereafter.

The fact that he had left the address given to the Gardai at the time of his arrest within a matter of days is highly indicative or suggestive of an attempt to go to ground and avoid the court process which was to take place, particularly when one notes that no effort was made to leave any forwarding details or no effort was made to tell the Gardai at the Bridewell where he had moved to. The fact that the latter did not occur militates heavily against the credibility of the applicant's averment at paragraph 5 of his grounding affidavit that he "was under the impression that I would be notified in writing of any court appearance." One must ask the completely rhetorical question as to how he expected the Gardai to make this written notification.

I accept the Garda evidence in general that when he was released from the Garda Station he was made aware of the need to be in Court on the 3^rd May 2001. It is not plausible, even allowing for the fact that he may not have been aware of all the criminal procedures involved, that he did not know that he had to be in court on that date.

It is also a fact that he did not tell the Gardai in February 2002 when he again came into contact with them, that there was an outstanding matter. While I do not expect him to have necessarily aware of what happened in court on the 3^rd May 2001 when he failed to appear, it is not reasonable for me to conclude that he would have felt safe in the knowledge that the matter had gone away. Therefore he contributed to the fact that the Gardai in Crumlin were never aware even of the possibility that there might be a warrant out there in respect of the applicant. If they had been given any information or if the applicant had made any enquiry about the previous matter, the delay would not have occurred. It is a significant matter in my view that another Garda Station was dealing with the second matter, and the fact that the national PULSE system was not in operation at the time.

Of course it is the fact that the applicant notified his different addresses to the Department of Social Welfare from time to time, but I do not think that he can claim much credit for doing so, since it was clearly in his own interests so to do because otherwise he would not be able to claim the benefits to which he was otherwise entitled.

As far as the efforts of the gardai to execute the warrant are concerned they were in my view minimal and perhaps short of what the court should regard as reasonable. It is true that efforts were made on a few occasions in the immediate aftermath of the issue of the warrant, but thereafter nothing was done. I am always acutely conscious of the limited resources available to the Gardai and it goes without saying that, as stated by Carney J., there can be no question that reasonable effort would extend to a "national manhunt", but I believe that even if further enquiries proved unfruitful the fact that they were made would show intent and would indicate that the Gardai did not simply file the warrant away and forget about it when their initial efforts bore no fruit. If such a situation were to be the extent of the effort made to apprehend persons on foot of warrants issued by the Courts of this country, the task of evasion so often undertaken by persons hoping to avoid the criminal process would be an easy one indeed, and the rule of law would be in some considerable jeopardy as a result.

There must be a middle ground short of a national manhunt, but in excess of a few unsuccessful knocks on the door. Each case would have to be considered on its own facts. But in this particular case, where the applicant was known to be foreign, I suppose it is not unreasonable to expect that the Gardai would consider that he may be claiming a rent allowance, and other allowances and that they might gain a useful lead on his whereabouts from that avenue of enquiry. What additional enquiries might be considered to be reasonable thereafter is another matter, but to do absolutely nothing as in this case cannot be effort to a sufficient degree.

However, having said that, it is not in my view an end of the matter. So far, I have found that the applicant has contributed in some way to the entire of the delay which occurred, and that the Gardai have done likewise. I have not yet considered the question of whether that delay, in so far as it has been attributed to the Gardai should be found to have resulted in prejudice to the applicant.

An interesting question is whether inordinate and unexcused/inexcusable delay on the part of the Gardai, to which the applicant has contributed, can in the absence of established real prejudice to the applicant, justify the Court in deciding that the further pursuit of the charges ought to be prevented.

On one view of this case, this Court would be quite justified in finding that the allegation of prejudice has not been made out. The applicant ahs stated simply that he is prejudiced "in that there are certain matters that I cannot recollect due to the passage of time" and that "this is exacerbated by the fact that this was the first time that I had ever been arrested and detained in a Garda station." No further information is given as to what sort of matter cannot be recollected, for example the identity of another person who might have been with him on the occasion and who might give evidence supportive of his case. The Court is left only with a bald and empty assertion which must count for very little on the scales used to determine where the justice of this case falls. I also attach no weight to the other alleged prejudice related to the minding of the child. That is not prejudice related to the fairness of his trial, but is an inconvenience or consideration which would follow only in the event of a term of imprisonment being imposed if he were to be convicted. The remaining question is whether delay simpliciter, with no attendant prejudice other than the fact of the delay, can entitle an applicant to the order sought. In my view such a situation is justified in the case of very lengthy delay, since a presumption of prejudice could be made in such cases.

Clearly when real prejudice is established to the appropriate level of likelihood, then since the authorities have been complicit in that delay, the matter ought probably be decided in favour of making the order, even where the applicant has contributed to that delay. The applicant's right to a fair trial is the most paramount consideration if there is a question of balancing society's right to have charges brought before the Courts and heard, against an accused's right to a fair trial. I am mindful of the fact that in the Casey case (Herbert J.) the applicant was a convicted man who simply did not turn up for his appeal, whereas in the present case, the applicant has not been convicted of the charge. The trial has not even commenced or taken place. That is a meaningful distinction in the context of prejudice, because in Casey it was more a question of fair procedures (i.e. delay in the commencement of a prison sentence) rather than the risk of an unfair trial. For that reason, every latitude should be allowed to the applicant in relation to his submission that he has been prejudiced as far as his capacity to receive a fair hearing is concerned. Accordingly, the Court must perhaps attach more weight to the Garda delay than to the applicant's contribution to that delay, and give the applicant as much benefit as possible in its assessment of the reality of his contention that he is prejudiced as to his Defence of the charge.

Since I am not satisfied that the applicant has made out a case which establishes, inspite of the delay, actual prejudice to him in his ability to conduct his defence because he has failed to elaborate in any manner whatsoever how he is prejudiced beyond a bald assertion of prejudice, I am left with the question of whether in this case the delay which has occurred is of a sufficient length to give rise to a presumption of prejudice to the extent that a fair trial cannot be guaranteed. I believe that there are a number of matters which the Court must have regard to in this case when making that judgment.

Firstly, the applicant is a non-national.

Secondly, the nature of the charge (involving being intoxicated at the time of the alleged offence) means that whatever about the applicant having any chance of remembering what happened closer in time to the event, it can be presumed that as time goes by any memory of those events will fade.

Thirdly, whoever is responsible for the delay (and I have found that both sides bear some responsibility) the fact is that the alleged offence occurred by now over three years ago.

Fourthly, the offences are not in a category which could be termed serious, although all crimes are serious in the strict sense, and this is a factor to be considered when weighing up the competing interests, namely society's right to proceed against accused persons, and the person's right, which is a guarantee under the Constitution, to a fair trial of the alleged offence within a reasonable time.

While the credibility and bona fides of this applicant is in doubt in my view, nevertheless I believe that the balance is in favour of granting the orders sought in view of the casual time which has elapsed and for the reasons which I have given. I order accordingly.