High Court of Ireland Decisions

 


HC 156/04

THE HIGH COURT

JUDICIAL REVIEW

RECORD No 60 JR 1997

BETWEEN

T.H.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND HIS HONOUR JUDGE PETER SMITHWICK

RESPONDENTS

JUDGMENT of Mr . Justice William M. McKechnie delivered on the day 9^th of March, 2004.

The Leave Order:

1. On the 17^th day of February, 1997, the applicant in the above entitled proceedings was granted leave by this court to seek, by way of an application for judicial review, the reliefs specified at paragraph 19A of the statement grounding the application on the grounds identified at paragraph 19(A)(2) and (5) thereof. Almost six years later, he was permitted to enlarge upon these grounds. In the amended notice of motion which resulted, the said applicant seeks an order prohibiting the first named respondent from taking any further step in the prosecution of the single offence with which he stands charged, and, in respect thereof, seeks to rely upon the grounds following:-

(A) That the first named respondent was guilty of oppression in insisting that the applicant be "put on his election", that is to say, to conduct a purported "arraignment on the summons" in the District Court, being a court other than the court of trial, to require the applicant, in response to questions to be put to him by the judge in the District Court, who would also advise the applicant of the following consequences of pleading guilty or not guilty, to decide, or "elect", whether he would plead guilty, with the consequence that the trial would be disposed of by way of summary jurisdiction in the District Court pursuant to s. 12(1) of the Criminal Law (Rape) Act, 1981, or, if he refused to plead guilty, then, with the consequences that he would be sent forward for trial on indictment before a judge and jury, that is to say, that there was oppression in that the "consent" of the first named respondent to summary jurisdiction under s. 12(1) of the Criminal Law (Rape) Act, 1981, was made conditional upon the applicant pleading guilty and that the first named respondent was giving his consent selectively for the purpose of or, alternatively, with the effect of, bringing pressure to bear on the applicant to plead guilty in violation of Article 38.1 and Article 40.3 of the Constitution and Article 6 of the European Convention on Human Rights.

(B) That there has been a pattern of abuse of process and fundamental unfairness amounting to oppression and a denial of the right to constitutional justice which is in violation of Article 5.1 and Article 6 of the European Convention on Human Rights and Article 38.1 and Article 40.3 of the Constitution.

(C) That there has been delay, which would make the further prosecution of the alleged offence otherwise than in accordance with law and contrary to Article 38.1 and Article 40.3 of the Constitution and Article 6 of the European Convention on Human Right: (the additional ground).

2. There has been no appearance or response in this case by or on behalf of the second named respondent. The first named respondent, however, has filed an amended statement of opposition. In that statement, it is claimed that the D.P.P. was never of the view that the indictable offence with which the accused person was charged could be dealt with summarily under s. 12(1) of the aforesaid Act of 1981, but rather, at all stages, was of the opinion that the only way in which it could be disposed of in the District Court was pursuant to the provisions of s. 12(2) of that said Act. In addition, it is denied that there has been any delay in this case which could be attributable to the said first named respondent and, furthermore, that whatever delay has occurred has arisen "as a consequence of his own actions, to wit, the prosecution, and the manner of the prosecution of these proceedings. In the premises, the applicant is not entitled to rely upon the alleged delay as a ground upon which the relief sought herein ought to be granted." (See paragraph (vi) of the said statement of opposition).
3. In his original application to this court, T.H. also sought, but was not granted, permission to argue, firstly, that there had been gross and inexcusable delay in the initiation of the said prosecution, secondly, that there was oppression on the part of the first named respondent in the attempts made by him to defeat the District Court order made on 3^rd December, 1996, and thirdly, that the said Director of Public Prosecutions was also guilty of oppression, and had acted in breach of the applicant's constitutional and other legal rights, by failing to make proper disclosure of relevant documents, which, it was claimed, he was obliged to do pursuant to a direction given by the District Court on 22^nd October, 1996.

Subject, therefore, to any issue as to the scope of the grounds specified at B and C above, the applicant is not entitled in these proceedings to seek any relief consequent upon the District Court order of 3^rd December, 1996 or the order of 22^nd October, 1996 and likewise is not entitled to advance any argument on the issue of charge pre-delay.

General Background: Period No. 1 For Grounds (A) and (B)

4. The background to this case, though long and detailed, must unfortunately be set out in this judgment, at least in abbreviated form, so that the issues which arise for consideration can be readily understood. This background can conveniently be divided into two periods of time, the first commencing with the date of the alleged offence by the applicant on one J.K. and ending immediately prior to the 17^th February, 1997, being the date on which the original leave order was obtained in this case. The second period commences with the granting of the said High Court Order and continues until 20^th November, 2002 (see para 65 infra).

The relevant events occurring within this first period can be summarised as follows:-

23^rd Jun 1995: Date of alleged offence against the applicant.

14^th Jul 1995: Date on which the victim made a formal complaint to the Gardaí, and furnished a statement in respect thereof.

8^th Sept 1995: Date upon which the applicant is requested by the Gardaí to attend at a local Garda Station in relation to the said complaint.

9^th Sept 1995: Mr. T.H. voluntarily attends at the local Garda Station and is later that day released without charge

7^th Oct 1995: The applicant, following arrest, is detained pursuant to s. 4 of the Criminal Justice Act, 1984. On questioning, he denies the allegations as made, but at an identification parade is identified by the victim. He is released without charge.

26^th Sept 1996: A summons issues charging the accused person that on 23^rd June, 1995, he did, at a place specified, sexually assault one J.K., a male, contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990.

27^th Sept 1996: This summons is served by the Gardaí on Mr. T.H.'s mother at the family home.

22^nd Oct 1996: On this date, being the return date on the summons, the case is adjourned to 29^th October and the District Court orders the D.P.P. to furnish documents to the legal advisers acting on behalf of the accused.

(24^th Oct 1996 -

30^th Oct 1996): Mr. Denis O'Sullivan, solicitor for the applicant, seeks these documents from the said Gardaí.

29^th Oct 1996: The case is further adjourned to 3^rd December, 1996

7^th Nov 1996: Superintendent P.J. Brennan, who is in overall charge of the Gardaí's involvement, encloses "copy of file as requested" by the said solicitor.

20^th Nov 1996: Mr. O'Sullivan writes to Inspector Delaney who was also involved in the prosecution and makes what he describes as two preliminary points. He firstly seeks an explanation for the delay between 23^rd June, 1995 and the issue of the summons on 26^th September, 1996 and, secondly, seeks an explanation as to the basis upon which this trial was to proceed on indictment, when, in his view, the matters alleged are of a nature which ordinarily should be disposed of by way of summary trial.

3^rd Dec 1996: On Mr. O'Sullivan's application, Judge MacGruairc of the District Court orders that the applicant's objection to jurisdiction should first be dealt with as a preliminary issue and, for that purpose, adjourned the case to 17^th December, 1996, whereupon a date for such legal argument would be fixed.

10^th Dec 1996: The case may or may not have been adjourned to this date from 3^rd December, but, in any event, was next listed in the District Court for 17^th December.

13^th Dec 1996: Superintendent P.J. Brennan replies to Mr. O'Sullivan's letter dated 20^th November, 1996 and indicates that "it is the intention of the prosecution to apply to the court on that date (the 17^th) to have the matter adjourned to Court 1 on Thursday 19^th December, 1996, for the purpose of having your client put on his election". He also said that the matters raised in the said letter of 20^th November were matters for argument in court and that he would not further comment upon them.

17^th Dec 1996: The D.P.P., in circumstances which are controversial, has the case adjourned to 19^th December, presumably for the purposes of having the accused person "put on his election" as previously had been indicated in the Superintendent's letter of 13^th December.

19^th Dec 1996: The District Court does not put the applicant "on his election" and reinstates the priority of its order made on 3^rd December, 1996. It fixes the 23^rd January, 1997 as the date for argument on the preliminary issue.

23^rd Jan 1997: The second named respondent hears legal argument from counsel on behalf of the accused person and from a representative of the state solicitor acting on behalf of the D.P.P. He rejects all the submissions so advanced on behalf of Mr. T.H.

5. As appears from the foregoing, this question of there being an issue which should be determined by way of preliminary argument seems to have first arisen on 3^rd December, 1996. It is not clear to me what issue as to the jurisdiction existed as of that date. It could only, I assume, be related to the two points made by Mr. O'Sullivan in his letter dated 20^th November, 1996, or rather the first point only, as surely the accused could not compel the D.P.P. to have the summons dealt with in the District Court. If that be correct, it would therefore have to follow that the issue could not include any question of the accused person being "put on his election", as this phrase did not emerge until later. So it would seem that when first raised, those two points at most, constituted the preliminary issue which the accused person wanted to dispose of prior to the prosecution otherwise proceeding. And so Judge MacGruairc fixed the 17^th December as the occasion upon which a date would be allocated for this issue.
6. In the interval, however, the Superintendent's letter of 13^th December issued, the content of which was raised before Judge Finn, who was presiding in the District Court on 17^th December. What transpired during the course of that hearing is subject to considerable dispute. The applicant claims, that though represented by junior counsel and solicitor, the D.P.P. sought to overrule the earlier order of 3^rd December, made by Judge MacGruairc, in that, in a matter which was wholly illegal and unlawful, he wanted to make arrangements to put Mr. T.H. "on his election". Hence the adjournment to the 19^th December. In so doing, he tried to circumvent the legal and constitutional rights of the accused person to have the preliminary issue determined.

In the replying affidavit sworn on 18^th June, 1997, Superintendent Brennan concede, that it was not appropriate to suggest, as he had done in his letter dated 13^th December, 1996, that the D.P.P. wished to have the accused person put on his election. He said that a certain amount of confusion arose on 17^th December as to the precise basis upon which the case could proceed in the District Court. By this he meant whether it was s. 12(1) or s. 12(2) of the Criminal Law (Rape) Act, 1981, which could apply.

7. In any event, whatever the explanation might be for what occurred on 17^th December, the case was adjourned to the 19^th, on which date Judge MacGruairc was again sitting. On that occasion, senior counsel on behalf of the applicant forcibly submitted that by reason of his actions on 17^th December, the D.P.P. was in effect trying to deprive his client of both his legal and constitutional right to argue jurisdiction. After hearing what counsel had said and also after hearing the explanation offered on behalf of the D.P.P., Judge MacGruairc gave full effect to what was intended by his original order of 3^rd December. He therefore fixed 23^rd January as the date upon which the issue as to jurisdiction would be argued.

There was, it should be said, no attempt to put the applicant "on his election" and at no time whilst this matter remained in the District Court was he ever so put.

8. When the preliminary issue came before the President of the District Court on 23^rd January 1997 there was full argument and full debate on the matters then raised on behalf of the applicant. His complaints, which were much more extensive than one could originally have envisaged, were four in number, and in general terms can be described as follows:-

(a) the issue of delay in the initiation of the charge against the accused person;

(b) the issue of the D.P.P.'s consent under s. 12(1) of the Criminal Law (Rape) Act 1981 and under s. 12(2) of the same Act: the applicant alleging that the first named respondent was guilty of oppression in giving his consent to have the case summarily disposed of under subsection (2), but refusing to so do under subsection (1) of the said section;

(c) the issue of what occurred on 17^th December, 1996: in that it was alleged that the actions of the D.P.P. were designed, perhaps deliberately, but without any reflection on the state solicitor, to frustrate the applicant's right to argue a question of jurisdiction, and finally,

(d) the issue of document delivery or document disclosure on the part of the D.P.P.

Having heard detailed and considerable argument on these points and having considered the many authorities quoted in respect thereof, the learned President of the District Court refused to accede to any of the submissions so made and accordingly ruled against Mr. T.H. on all of the points so advanced on his behalf.

9. The above, therefore, is a general summary of the more salient features of this case commencing from the date of the alleged offence and continuing up to the decision of the said President given, as stated, on 23^rd January, 1997.

Before dealing with the issues in this case, I would like to say that in respect of all matters canvassed by both the applicant and the respondents, I have had the benefit of most comprehensive and detailed written submissions, supported where appropriate with copies of all statutory and constitutional provisions, as well as the relevant case law: this not only from our domestic courts, but also from other systems of law, including England and the United States. In addition, the main points of the applicant's reply to the submissions advanced on behalf of the first named respondent, were also committed to writing. In total, the text alone of the submissions so prepared on behalf of Mr. T.H. ran to over 75 pages. It is important, irrespective of outcome, that I should immediately recognise the contribution which these submissions have made and should in respect thereof offer my gratitude to all counsel involved for their diligence, industry and commitment.

11. It is not, however, with great ease, that I can establish the parameters of the first ground upon which leave was obtained, which ground is set out in full at para 1 above. The precise scope of what is involved is difficult to define, as is the identity of the core matter of complaint within this issue. As can be seen from its wording, it alleges that the D.P.P. insisted upon the applicant being "put on his election", that is, being "arraigned on the summons"; and this before the District Court, which was not the court of trial. It is said that such a process would involve the District Judge asking questions of the applicant, including the crucial question as to how he proposed to plead. As part of this questioning, it is claimed that the District Judge would advise him of what would follow from entering a guilty plea and what would follow from entering a plea of not guilty, with the most serious consequences of both being then outlined. These were that on a plea, the charge could be dealt with in a summary manner, with an exposure only to limited penalties, whereas on a plea of not guilty, the matter would be sent forward to the Circuit Court and there tried on indictment, with much more severe sanctions being available to the judge of that court.

As part of this procedure, it is said that the D.P.P. was prepared to furnish his consent to a summary disposal under s. 12 (1) of the 1981 Act, but only upon condition that the said accused person would plead guilty. In putting forward this discriminatory basis, on which he would give, or withhold, his consent, he was acting selectively. These matters, as part of this process, constituted, in the submission of the applicant, oppression, in that the same were designed to bring pressure to bear on the accused to plead guilty and, as a result, violated Article 38.1 and Article 40.3 of the Constitution and also Article 6 of the European Convention on Human Rights.

12. A more detailed description of this ground can be gathered from the submissions so made. It was said that on a charge of sexual assault under s. 2(1) of the Criminal Law (Rape) (Amendment) Act, 1990, the D.P.P. had a choice of position, namely that the offence in question was of a minor nature fit to be tried summarily, and as part of that stance, to give his consent to the matter being disposed of under s. 12(1) of the 1981. Otherwise, the offence to finality, had to be prosecuted on indictment.

In this case, it is claimed that following upon the improper suggestion made by the Superintendent in his aforesaid letter dated the 13^th December, 1996, and given the matters which occurred in the District Court on the 17^th and 19^th December of that year and also on the 23^rd January, 1997, the D.P.P. tried to compel the accused person to partake in what has been described as this "pernicious election as to plea" and also tried as part of this wholly improper procedure, to force an arraignment on him in the District Court.

13. This practice or procedure, it was submitted, is thoroughly objectionable for two reasons:-

Firstly, by reason of its inherent inducements and threats it brings wholly improper pressure to bear on an accused to plead "guilty" and secondly, because it is has no jurisdictional basis, in that it is equivalent to an "arraignment on a summons" in a court other than the court of trial, which is both unlawful and improper.

14. The abuse which is inherent in such process, is according to the applicant, self evident and quite manifest. The defendant is being promised that if he should plead guilty, the D.P.P. will argue that the offence is of a minor nature fit to be tried in the District Court and, therefore, the accused has the benefit of summary disposal, with the risk of punishment accordingly limited. However, if he should refuse to plead guilty, the D.P.P. will then argue that the same offence is not of a minor nature and otherwise is not suitable for trial before a District Judge. Accordingly, the accused will have to face a trial on indictment and in the process expose himself to the risk of vastly increased punishment.

This, it is suggested, constitutes an improper threat, promise or inducement all of which are designed to coerce a defendant to plead guilty

15. It is argued by way of analogy, that if a similar form of threat or inducement was employed by a police officer in order to obtain a confession, then that statement or admission would be excluded from evidence on the grounds that it was involuntary. As the courts would not permit this type of practice to occur, it is claimed equally that the courts should not allow themselves to be used as an instrument calculated to produce a plea of guilty by the tactics or strategy invoked by the D.P.P. Such a strategy is indistinguishable from the example given above, where the resulting admission would be inadmissible, not only on common law principles, but also on the grounds of constitutional violation.
16. As part of this submission, it is asserted that in, reality, this "pernicious election as to plea" is the same as compelling the accused person to suffer an arraignment on the summons before the District Court, which in this case was not the court of trial. The only involvement of the District Court at this stage of the process is to establish the identity of the court of trial. If, in so deciding, an accused person should choose the District Court as that venue, then that court becomes the court of trial and can in such capacity ascertain the plea intentions of an accused. Otherwise there can be no arraignment in the District Court, and the accused must be sent forward to the Circuit Criminal Court, where his arraignment takes place. If this distinction is not rigidly adhered to, but instead a practice, such as that adopted in this case, is invoked, then that constitutes a violation of Article 38.1 of the Constitution.
17. It is important to appreciate that the above submissions are predicated on a belief that the D.P.P. was at all times operating s. 12(1) of the 1981 Act and was, within the remit of that statutory provision, making the giving of his consent conditional upon the applicant pleading guilty.
18. In addition, a further submission was made to the effect that the same misconduct was perpetrated for a second time, but on this occasion in different circumstances and under a different label. Arising out of certain remarks made by the state solicitor during the course of the District Court hearing on the 23^rd January, 1997, it is said that the D.P.P. did an absolute U-turn and for the first time sought to rely upon s. 12(2) of the 1981 Act, rather than as previously s. 12(1). Even allowing for this, it is said that under s. 12(2), which invokes s. 13 of the Criminal Procedure Act 1967, it is not permissible for either the D.P.P. or the presiding judge to make any enquiries of an accused person as to his plea intention. Section 12(2), in effect s. 13, of the 1967 Act can only be invoked at the initiation of a defendant. Otherwise the section must remain dormant. It is suggested that this is quite evident from sub-section (2) of s. 13, which makes no mention of an "arraignment", and is also supported by sub-section (4) of the same section. Finally, in this regard, the analogy with a police officer obtaining a confession or admission in circumstances which ultimately are unlawful, illegal or unconstitutional is also maintained.
19. In the concluding part of this argument, it is asserted that in the circumstances which have occurred, the first named respondent has "irrevocably poisoned the criminal justice process in the instant prosecution". His actions have amounted to oppression and have involved a grave risk of a coercive effect emanating from the procedure which the D.P.P. sought to adopt. This procedure, it is claimed, is a departure from fundamental considerations of fairness, which are constitutionally mandated in the criminal justice process. The People (D.P.P.) v. Healy [1990] 2 I.R.73, The People (D.P.P.) v. Kenny [1990] 2.I.R.110 and The People v. Shaw [1982] I.R. 1, have all been relied upon in this regard.

Respondents Submissions

20. In response, the answer made on behalf of the Director of Public Prosecutions, with regard to this first issue, was brief and to the point. It was said by Mr. Feichín McDonagh SC, that whatever confusion may have initially existed about the D.P.P.'s position regarding the summary disposal of this offence, the same was fully cleared up and comprehensively dealt with by the submission made by Mr. O'Hanlon, solicitor, to the learned President, during the course of the hearing which took place on the 23^rd January, 1997. The relevant portion of this submission is set forth at para. 28 infra and, in particular, see the latter part of that submission. Having so clarified the position, it is stated that every person involved in this case must have known accurately what the D.P.P.'s approach was to having this case summarily disposed of in the District Court. Certainly the learned President so understood. Therefore, at no time thereafter could there have been any justification whatsoever in making or in persisting with the complaint, which is now the subject matter of issue number one. Furthermore, it is submitted that the applicant has proceeded on an entirely false premise in the manner in which he has sought to establish and pursue this said ground, and moreover even if there was some design on the part of the D.P.P., which is strenuously denied, it came to nothing. There was no fruits of whatever is alleged to have occurred. The applicant's approach is borne out of a deep and profound suspicious frame of mind. This ground, like the other two, is misconceived and utterly spurious.

Statutory Provisions:

21. Section 12 of the Criminal Law (Rape) Act, 1981, as subsequently amended by s. 16 of the Criminal Law (Rape) (Amendment) Act, 1990, reads as follows:-

"12 - (1) A Justice of the District Court shall have jurisdiction to try summarily a sexual offence or an offence to which section 11 relates if

(i) the justice is of opinion that the facts proved or alleged against a defendant charged with such an offence constitute a minor offence fit to be tried summarily

(ii) the Director of Public Prosecutions consents

(iii) the defendant (on being informed by the justice of his right to be tried by a jury) does not object to being tried summarily,

and, upon conviction under this subsection, the said defendant shall be liable to a fine not exceeding £1,000 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both such fine and such imprisonment.

(2) Section 13 of the Criminal Procedure Act, 1967 (which provides for the procedure where a person pleads guilty in the District Court to an indictable offence) shall apply in relation to an offence mentioned in subsection (1) and as if, in lieu of the penalties specified in subsection (3) of the said section 13, there were specified therein the penalties provided for by subsection (1) of this section and the reference in subsection (2) (a) of the said section 13 to the penalties provided for in subsection (3) of that section should be construed accordingly.

(3) Section 2 of the Criminal Justice Act, 1951 (which provides from the indictable offences which may be tried summarily with the consent of the accused) shall not apply to an offence to which section 10 relates."

22. As can be seen by virtue of subsection (2) of s. 12 of the 1981 Act, s. 13 of the Criminal Procedure Act 1967 becomes immediately relevant. Insofar as the section is material, it reads as follows:-

"13. – (1) …

(2) If at any time the District Court ascertains that a person charged with an offence to which this section applies wishes to plead guilty and the Court is satisfied that he understands the nature of the offence and the facts alleged, the Court may –

(a) with the consent of the Director of Public Prosecutions, deal with the offence summarily, in which case the accused shall be liable to the penalties provided for by subsection (3), or

(b) if the accused signs a plea of guilty, send him forward for sentence with that plea to a court to which, if had pleaded not guilty, he could lawfully have been sent forward for trial.

(3) …..

(4) (a) Where a person is sent forward for sentence under this section he may withdraw his written plea and plead not guilty to the charge.

(b) In that event the court shall enter a plea of not guilty which shall have the same operation and effect in all respects as an order of a Justice of the District Court sending the accused forward for trial to that court on that charge, and the Director of Public Prosecutions shall cause to be served on him any documents required to be supplied to an accused and not already served.

(5) ………."

District Court hearings: 17^th and 19^th December 1996:

22. As set out in an earlier part of this judgment, Mr Denis O'Sullivan, solicitor on behalf of the applicant, wrote to the Gardaí on 20^th November, 1996 and raised two points. This letter was replied to by Superintendent Brennan on 13^th December, 1996. Whilst refusing to comment on the matters so raised, suggesting that the same were more appropriate for court argument, the Superintendent in his letter did say that "it is the intention of the prosecution to apply to the court on that date (17^th Dec) to have the matter adjourned to Court 1 on Thursday, 19^th December, 1996, for the purpose of having your client put on his election" (emphasis added). It will be recalled that on 3^rd of December, Judge MacGruairc agreed that a "jurisdictional issue" raised by the applicant should be disposed of by way of a preliminary hearing, and fixed Tuesday 17^th December as the occasion upon which a date would be allocated to the parties for that purpose. Hence the reference to 17^th December. The mention in this letter of having the accused person "put on his election" and what occurred in court on 17^th and 19^th December, 1996 and on 23^rd January 1997 constitute the factual background to this first issue.
23. The aforesaid letter from Superintendent Brennan, dated 13^th December, 1996, the relevant portion of which is quoted above, commenced, as I have said, the train of events which gives rise to this issue No. 1. In the substantive replying affidavit filed on behalf of the D.P.P., Superintendent Brennan at para. 23 thereof, concedes that it was inappropriate to make any mention of a proposal to put the applicant "on his election". This, he avers, resulted from some confusion over which of the relevant provisions of the 1981 Act might apply. Matters in this regard developed further when the case next came before the District Court on 17^th December.

At para. 15 of the same affidavit, Superintendent Brennan recalls his recollection of those events:-

"15. On 17^th December 1996, Mr. Horgan, barrister, appeared on behalf of the applicant. Submissions were made by Inspector Dillane in regard to the provisions of Criminal Law (Rape) Act 1981 and the Criminal Law (Rape) (Amendment) Act, 1990. Although there was some initial confusion regarding the matter, the Director of Public Prosecutions was not consenting to summary disposal of the matter pursuant to s. 12(1) of the Criminal Law (Rape) Act, 1981, as amended. Rather, the case was to be dealt with pursuant to s. 12(2) of that Act. As a consequence, the relevant statutory provisions were s. 12(2) of the Act of 1981 and s. 13 of the Criminal Procedure Act, 1967. This is set out at pages 69, 70 and 75 of the transcript of the hearing on the 17^th December, 1996 before the second named respondent."

This reference to a transcript seems to be erroneous as no such document exists amongst the papers.

24. In any event, the applicant vehemently disputes the Superintendent's recollection of what actually occurred. Rather, on his behalf, it is expressly or impliedly stated that Inspector Dillane, who on that day was in charge of the court presentation, sought to have the case dealt with under s. 12(1) of the 1981 Act, but did so subject to the proviso that the applicant would have to plead guilty. If no such plea was forthcoming, then the case could not be summarily disposed of and would have to proceed on indictment. This necessarily involved putting Mr. T.H. on his "election", which in the documentation is repeatedly described by his advisers as meaning "put on his election as to the plea". It is claimed that the Inspector successfully sought to have the case adjourned to 19^th December, in order to implement this purpose.
25. The events which occurred on the 17^th December, or at least those alleged to have occurred by the applicant, have in themselves given rise to great difficulty. It is claimed that the D.P.P. by so acting endeavoured to circumvent or deny to the applicant his constitutional right to have the preliminary issue determined, as the District Court had already directed by virtue of its order dated 3^rd December.

Disregarding, however, this problem for a moment, the case then came before Judge MacGruairc on 19^th December who agreed that the preliminary issue as such, was to be determined and fixed the 23^rd January for that purpose. On making this ruling, senior counsel for Mr. T.H. expressed himself totally satisfied that, by reason of this order, his client's rights, whether legal or constitutional, had been fully protected. Whatever had been intended had not succeeded. Given that nothing detrimental is alleged to have occurred to the applicant between the 17^th and 19^th of December, it is extremely difficult to see how any point, arising out of 17^th December court hearing, could have travelled beyond the 19^th December but travel it did.

In respect of the January, hearing there is a full transcript available. Dr. John White S.C., together with junior counsel and solicitor, appeared on behalf of the applicant. Mr. Edward O'Hanlon, solicitor, represented the D.P.P., as he had previously done. The hearing was presided over by the President of the District Court, the second named respondent.

District Court hearing 23^rd January 1997

26. In opening the case before the learned President, Dr. White S.C. indicated that he proposed to address him on four issues, which he outlined as follows:-

(a) the gross and inexcusable delay in the initiation of the proceedings after a formal complaint had been made to the Gardaí;

(b) the oppression exercised by the D.P.P. in bringing pressure to bear on his client to plead guilty;

(c) the attempt by the first named respondent, through his agents, to defeat Mr. T.H.'s constitutional rights to have the preliminary issue determined as ordered by the District Court; and finally;

(d) the failure of the D.P.P. to make full document disclosure.

As part of his argument on each of these issues, Dr. White S.C. referred to the relevant factual context in which such matters arose and supported his submissions by quoting extensively from the appropriate statutory provisions and also from relevant case law.

27. Mr. Edward O'Hanlon, solicitor, replied on behalf of the first named respondent. As some of his exchanges with the presiding judge are central to this issue, it is necessary to refer to these, as the same are reported in the transcript. The material portions are as follows:-

"THE PRESIDENT: Sorry, no, that, was the third point. Oh yes, the second point is that one in which he says that the Director of Public Prosecutions, in giving a decision as to whether or not he would consent to jurisdiction in this court, was being oppressive in saying that he would do so only on a plea of guilty and would not be prepared to do so on a plea of not guilty.

MR. O'HANLON: In answer to that, President, I would say that the charge is under the amended Criminal Law Rape Act of 1981, s. 12, that was amended by the Criminal Law Rape Amendment Act, 1990, by s. 16 and Dr. White has kindly given you a copy of the Garda Síochána guide and whilst I haven't read it I think he read out what was correct.

THE PRESIDENT: Well now first of all is it the case that the prosecution are prepared to accept a guilty plea in the District Court?

MR. O'HANLON: Oh yes, President, I have no difficulty about that, President I have no difficulty.

THE PRESIDENT: You are prepared to accept a plea of guilty in the District Court but if the accused is pleading not guilty you are not prepared. Is that the case?

MR. O'O'HANLON: No, President, I say that the first and fundamental situation is the court has to decide whether it's a summary offence or not under the amended section. It says there, subsection 1 of s. 12 of the Criminal Law Rape Amendment Act, 1990, "…"

Now I will pause here, President, because I say that was the issue before the court, before Judge Finn and before Judge MacGruairc, that the District Judge has to hear the allegations of fact, then decide. That is the fundamental principle on which he has jurisdiction. Otherwise he has no jurisdiction.

THE PRESIDENT: I do not think there can be any doubt about the next step – the accused has a right of election and the accused opts for trial by jury and that is an end to it.

MR. O'HANLON: That is an end to it but I say unless you hear the facts.

THE PRESIDENT: Of course, well I would consider the file which has been handed into me and/or anything else you want to say to me and if I hold that it is not a minor offence it must go forward for trial and that is the end of it.

MR. O'HANLON: And that is the end of it.

THE PRESIDENT: But let us say that if I hold that it is a minor matter fit to be tried summarily and if the accused indicates that he is prepared to elect for summary disposal we then come to the third person with power in this matter, that is the Director of Public Prosecutions.

MR. O'HANLON: Yes.

THE PRESIDENT: Now if both I and the accused should choose a method of summary trial, what is the attitude of the Director of Public Prosecutions to that? If he is prepared to accept?

MR. O'HANLON: Well, then the Director is prepared to consent.

THE PRESIDENT: The summary disposal?

MR. O'HANLON: The summary disposal.

THE PRESIDENT: Without any qualification?

MR. O'HANLON: Sorry on a plea of guilty.

THE PRESIDENT: Only on a plea of guilty. Now this is the point that Dr. White makes, that the D.P.P. is saying "I consent to summary disposal only on a plea of guilty and not on a plea of not guilty", that in doing that he is being oppressive.

MR. O'O'HANLON: Well, fortunately I have a case here and I gave a copy of it to my friend this morning. It is the Director of Public Prosecutions v. James Paul McDonnell and Paul Smith. It was delivered by Mr. Justice Frank Murphy on 13^th of May 1994.

THE PRESIDENT: Because it would seem to be that in some statutes it is actually written in, in respect of some offences that the District Court can deal with it only on a plea of guilty so when that distinction is being made by statute is very difficult to see how that can be oppressive. At least it would not be open to me to hold that it was. I would have to presume a statute to be constitutional. I will read this judgment of Mr. Justice Murphy.

MR. O'HANLON: Now, if I could go to p. 2, President, there. Well first of all it was a charge.

THE PRESIDENT: Yes, this is a case where the Director was consenting to summary disposal on a plea of guilty and the defendant was not proposing a plea of guilty.

MR. O'HANLON: If I could read the last paragraph on p. 2 for the purpose of the note taker present.

THE PRESIDENT: Yes, that is a good point.

MR. O'HANLON: " ……

THE PRESIDENT: Yes.

MR. O'HANLON: …. (continuing the quote)

Now, I have no problem in the present case. I have instructions from the Director of Public Prosecutions to consent first of all on you being satisfied that it is a summary charge fit to be tried summarily and secondly of course that the accused consents.

THE PRESIDENT: Yes.

MR. O'HANLON: But that is if there is a plea of guilty forthcoming. Now Murphy J, goes on at the top of p. 3 "indeed, it did seem at one stage from the evidence that it might have been inferred that this statement was made as an inducement to persuade the respondent to enter a plea of guilty. I am quite satisfied on the evidence that this was not the case." Now, in the particular circumstances of the case I am meeting today, President, there is no question of the Director trying to induce. It's a fact of life.

THE PRESIDENT: Yes.

MR. O'HANLON: The court cannot deal with the matter unless you decide it's a summary offence, unless the accused consents and the Director then says "I will if he pleads guilty".

Now, if I could pause there and I will refer you to s. 2 of the amended Criminal Law Rape Act, 1981, again.

THE PRESIDENT: Section ?

DR. WHITE: President I am handing in a copy I am going to give you the guide.

THE PRESIDENT: I have one.

DR. WHITE: But that is composite.

THE PRESIDENT: Thank you very much indeed Dr. White that is very good, yes. (Document handed to the court).

MR. O'HANLON: I submit that the question of consent to summary trial pursuant to s. 12(1) does not arise unless these matters are met and I will say that essentially s. 12(1) therefore does not apply to the case irrespective of whether you are of the view that it is minor or not and even if the defendant does not object. So I say in the present circumstances then the matter falls to be dealt with within the corners of s. 12(2).

THE PRESIDENT: Yes.

MR. O'HANLON: Of that Act, as otherwise I say that the matter becomes an indictable offence not being dealt with summarily and s. 12(2) I think I have again a photostated copy. I am sorry I do not have the statute with me but I think Dr. White will accept I have a copy of the Criminal Procedure Act, 1967 I will hand in. (Document handed into court). And s. 13 I think deals with, it says "this section applies to all indictable offences except the following – and it goes on. Now its subsection (2) is the relevant one, President. "If it at any time the District Court ascertains that a person charged with an offence to which this section applies wishes to plead guilty and the court is satisfied etc." Now, I say that is where s. 12(2) comes in and s. 13 of the Act of 1967.

THE PRESIDENT: Yes

MR. O'HANLON: So that s. 13 again provides that "the District Judge may, if he ascertains that an accused person wishes to plead guilty, with the consent of the Director deal with the offence summarily." Now, I say that would not be deemed to be summary trial of the offence but rather that you are empowered to deal with the matter by applying the penalties provided for in the 1981 Act and I say if the matter is not dealt with in that way then either the accused should be sent forward for trial either – that goes into preliminary examination.

THE PRESIDENT: Yes.

MR. O'HANLON: That situation then. We have not even reached that stage yet.

THE PRESIDENT: Yes.

MR. O'HANLON: So what I say is there is no question of coercion. It's a fact of life. In 99.9% cases in the criminal sessions in the District Court the accused is always asked does he consent or if he is pleading guilty or not guilty. It is not a question of coercion. It's a fact of life. It's a practice that has been going on for years in the District Court. If Dr. White is saying because of that – and I say there is no ambiguity – there is no attempt to coerce the accused. The Director has an input into the case that if he does not consent then even if your good self consents and if the accused consents it goes to another forum. I have no difficulty about that, at present."

Further on in the transcript, at p. 85, this matter is referred to. The following is the exchange between Mr. O'Hanlon and the President.

"MR. O'HANLON: President, could I just clarify two matters. One is I may not have made myself clear as regards s. 13 of the Criminal Procedure Act, 1967.

THE PRESIDENT: That deals with ?

MR. O'HANLON: What I meant to convey was that it is clear to me and I am instructed that s. 12(1) does not apply in the present circumstances and in fairness to the accused it would be the duty of the prosecutor to point out at s. 13 that they could have the matter dealt with summarily on a plea of guilty. Now I didn't make that clear I think.

THE PRESIDENT: No, I quite understand.

MR. O'HANLON: You follow.

THE PRESIDENT: I do follow."

Decision

28. In my view, there is a fundamental and self-evident distinction between s. 12(1) and s. 12(2) of the 1981 Act. The circumstances in which either can be invoked are entirely discrete and quite separate from one another. The language of both subsections is, at least in principle, clear, definite and precise, with the result that when one consults either provision it is very difficult indeed to see how any confusion could arise. Certainly from the point of view of lawyers who are examining the subsections.
29. For s. 12(1) to apply, and thus confer on the District Court the power to summarily dispose of the offence in question, there is a distinct input necessary from three different participants. Firstly, the presiding judge must form an opinion, on the facts proved or alleged, that the offence in question "constitutes a minor offence fit to be tried summarily". If, having embarked upon this enquiry, the said judge should not so find, then there is no jurisdiction under the subsection, and its provisions cannot be availed of. If, however, the judge is of the opinion mentioned, then the question of the D.P.P. consenting becomes relevant. Likewise, as with the first enquiry, if he refuses to so do, then, irrespective of the opinion of the District Judge and, indeed, also of the defendant, the subsection cannot be used. If, however, there is an affirmative opinion from the District Judge and if the D.P.P. consents, then the third statutory precondition comes into play. It is whether the defendant, on being informed by the judge of his right to be tried by jury, does not object to being tried summarily. Again, as with the involvement of the District Judge and the D.P.P., if the defendant should object then that is an end to the operation of s. 12(1). It is therefore, in my view, utterly clear that these three requirements must be satisfied before jurisdiction can vest and unless all three are present, the subsection, in that particular case, is of no value.

From even a cursory reading of the subsection, it is abundantly evident that there are no further preconditions for its use. In particular, there is no mention of any requirement on an accused person to plead guilty and by no rule of statutory interpretation could such a condition be inferred or implied. Indeed, given the absence of such a requirement, and given the obviousness of the judge having to adjudicate on the question of guilt or innocence, it is quite evident in my view that the subsection envisages its operation on the premise that a defendant asserts his innocence and does not in fact plead guilty. In my humble opinion, there cannot be any other construction placed upon this subsection.

30. When this subsection is contrasted with subs. (2) of s. 12, it is quite clear that the circumstances under which the latter can be invoked are distinctly separate from those which would permit a disposal under s. 12(1) of the 1981 Act. Immediately, one can see that subs. (2) invokes s. 13 of the Criminal Procedure Act, 1967. That section is set out in full at para. 22 above. In particular, reference should be made to subs. (2) of that section. Under this provision there are again a number of matters which must exist before the District Court has jurisdiction to consider disposing of a case in a summary manner. Firstly, the accused person must wish to plead guilty to the offence with which he stands charged before that court. Secondly, he must understand the nature of the offence and the facts alleged and, thirdly, the D.P.P. must consent to the case being disposed of summarily. If these conditions are met then the court may deal with the case summarily, though there is no mandatory obligation to so do. It may be, depending on the judge's views of the facts, that the accused is sent forward with his plea of guilty to the next appropriate sentencing court. Disregarding for a moment as to how one should ascertain the wishes and understanding of the accused person, it is in my view abundantly clear from s. 13(2) that an essential precondition to the District Court having jurisdiction to dispose of the offence summarily, is that, in respect thereof, the defendant pleads guilty. In the absence of that plea, and even though the other requirements are satisfied, this subsection simply cannot be used. As with s. 12(1) of the 1981 Act, there is no scope to add to or excise from these said requirements.
31. As can therefore be seen, s. 12(1) of the 1981 Act deals, inter alia, with a situation of an accused person pleading not guilty, whereas s. 12(2) of the same Act, deals inter alia with a situation where an accused person pleads guilty. This distinction is fundamental and, in my view, inescapably follows from the plain and unambiguous wording of the relevant subsections.

Needless to say, therefore, if any additional or varied requirement, not specified in s. 12(1) or s. 12(2) of the 1981 Act, was insisted upon, for the operation of either subsection, then any resulting exercise in jurisdiction would unquestionably be ultra vires the relevant subsection.

Given the difference of both regimes, there is nothing inconsistent, much less incongruous, in the D.P.P. taking a positive view with regard to one sub-section and a negative view with regard to the other sub-section.

32. The first evidential matter, in point of time, relevant to this issue, is the letter of the 29^th May, 1996, from the Director of Public Prosecutions to the local state solicitor, Messrs. Barry Galvin & Co. in whose firm Mr. Edward O'Hanlon practises. In paragraph 5 of that letter the D.P.P. states:-

" … I would be somewhat reluctant to consent to summary disposal of this charge and would certainly do so only on a plea of guilty. The Gardaí might be asked for their views as to summary disposal."

Apart from this direction to the state solicitor, I cannot find any later instruction which either alters, varies or rescinds this view. A copy of this letter was sent to Mayfield Garda Station on the 4^th June, 1996. Therefore, at the District Court hearings in December, 1996 and January, 1997, both the Gardaí and the state solicitor must have known that the D.P.P. would consent to summary disposal, only if the accused person should plead guilty. There is no suggestion whatsoever on the evidence that consent would be forthcoming for a disposal in the District Court on the basis of the defendant pleading not guilty.

33. The superintendent's letter of the 13^th December, 1996, which refers to the accused being "put on his election", was unfortunate and certainly inaccurate and, as conceded by him, inappropriate. Whatever might be its correct interpretation and whatever might be its true meaning, this reference must be looked at in the context of the subsequent hearings of the 17^th and 19^th December and on the 23^rd January, 1997. In particular, consideration must be given to the submissions made on behalf of the D.P.P. on this latter occasion. These said submissions are extensively set out in para. 28 of this judgment. It would, in my view, be entirely incorrect to isolate any particular part of Mr. O'Hanlon's argument and to come to a concluded view in that way. The entirety of it must be considered as a whole.

In approaching it thus, it seems to me that, at least initially, some confusion could be said to have existed by reason of the language used by Mr. O'Hanlon. In the beginning of his submission, he told the President, in an answer to a direct question, that he had no difficulty in accepting a guilty plea in the District Court, which though not stated presumably could only mean that on his instructions the D.P.P. would consent to a summary disposal on a plea of guilty. Quite logically, the learned President then suggested, by way of further enquiry, that in the absence of a plea the D.P.P.'s position was that he would not accept the District Court. In answer, having said "No", Mr. O'Hanlon, solicitor, then suggested that the first and fundamental enquiry of the court was to decide whether or not the charge constituted a summary offence. He claimed that if there was a positive finding in this regard, jurisdiction existed but otherwise no. This tends to show that his mind was referring to s. 12(1) of the 1981 Act. Exchanges continued between himself and the learned President with the latter again enquiring as to what the position of the D.P.P. was, if both he and the accused agreed to summary disposal. The eventual answer was that the D.P.P. would consent but "on a plea of guilty" (see page 25). That answer is more appropriate to the invocation of s. 12(2) (effectively meaning s. 13 of the Criminal Procedure Act, 1967) rather than s. 12(1) of the 1981 Act. So, these exchanges could legitimately have given rise to confusion.

34. However, as Mr. O'Hanlon progressed with his submission he said that s. 12(1) did not arise and that the circumstances fell to be considered within s. 12(2). He went on to quote s. 13 of the 1967 Act. He then summarised its provisions and made comments thereon. Once more at the end of this part of his submission he said:

"What I meant to convey is that it is clear to me and I am instructed that s. 12(1) does not apply in the present circumstances and in fairness to the accused it would be the duty of the prosecutor to point out at s. 13 that they could have the matter dealt with summarily on a plea of guilty. Now I didn't make that clear I think."

To which the President replied:

"No, I quite understand."

35. It therefore seems to me, from a reading of the entire of this part of the state solicitor's submission that whatever confusion of language may have existed at the beginning, Mr. O'Hanlon's position was fully and totally clarified as he continued into these exchanges with the President. In my view, this is abundantly clear from the passages above quoted. If the position was otherwise, as is being suggested by the applicant, namely that s. 12(1) was to apply, but only on a plea of guilty, then there was no necessity to refer to s. 12(2) and certainly the quoting of s. 13 of the 1967 Act and the comments thereon, were entirely inappropriate and valueless. I could not under any circumstances agree that the exchanges meant, or were intended to mean, that the D.P.P. was attempting to impose an additional statutory requirement before he would give his consent to having the case disposed of under s. 12(1) of the 1981 Act. In the circumstances, I have no doubt whatsoever but that Mr. O'Hanlon, ultimately conveyed, to the clear and definite understanding of the President, what the D.P.P.'s position was. On a plea of guilty he would consent to the case being disposed of in the District Court, but not otherwise. This, necessarily, must have meant that the only relevant statutory provision was s. 12(2) of the 1981 Act, as that subsection applied s. 13 of the Criminal Procedure Act, 1967.

This view is entirely consistent with the transcript of the relevant submissions and also is entirely in accordance with the only instructions which the state solicitor had from the D.P.P. I therefore believe that the premise upon which the applicant mounts this argument is incorrect and that factually there are no grounds in existence which could possibly establish the basic framework, which would be necessary in order to justify the acceptance of the legal submissions made thereon.

36. In addition, of course, and of fundamental importance is the fact that the accused person was never asked how he proposed to plead, he never pleaded and was never in any other way, or by any other means "put on his election". He at all times had a full legal team advising and representing him. So even if the intention of the D.P.P. was as is argued for on behalf of the applicant, nevertheless no act, or event resulted therefrom and no detriment was causally or otherwise linked thereto.

Notwithstanding this, it is still submitted that the D.P.P.'s attempts, being those alleged by the applicant, had "irrevocably poisoned the criminal justice process in the instant prosecution" and thus the furtherance of that prosecution should be prohibited. The People (Director of Public Prosecutions) v. Healy [1990] 2 I.R. 73 and The People (Director of Public Prosecutions) v. Kenny [1990] 2 I.R. 110 were quoted in this regard. In Healy, the issue was the right of a detained person to have immediate access to his solicitor, who, following request was present at the Garda Station where and whilst the accused was being interrogated and at a time prior to the completion of an inculpatory statement. Having found that the refusal or failure of the Gardaí to permit immediate access was conscious and deliberate, the Supreme Court concluded that these acts were unconstitutional and, as a result, agreed that the incriminating statement should be excluded.

In Kenny, the Supreme Court considered several decisions of both the Court of Criminal Appeal and of the Supreme Court itself, when deciding how evidence obtained in breach of one's constitutional rights should be dealt with. Having rejected the majority view in The People v. Shaw [1982] I.R. 1, on this particular point, Finlay C.J., himself giving a majority judgment, at p. 134 said:

"I am satisfied that the correct principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in its ('the court's) discretion."

The court then excluded evidence which had been obtained as a result of forcible entry.

37. It is also submitted on behalf of the applicant, that even though nothing of an incriminating nature resulted from the "actions of the D.P.P. in the above regard" nevertheless, this court should halt the further prosecution on the basis of preserving standards. The following passage from The People v. Shaw [1982] I.R. 1 is relied upon. At p. 61 Griffin J. said:

"Because our system of law is accusatorial and not inquisitorial and because (as had been stated in a number of decisions by this Court) our Constitution postulates the observance of basic or fundamental fairness of procedures, the judge presiding at a criminal trial should be astute to see that, although a statement may be technically voluntary, it should nevertheless be excluded, if by reason of the manner of or the circumstances in which it was obtained, it falls below the required standard of fairness. The reason for exclusion here is not so much the risk of an erroneous conviction as a recognition that the minimum of essential standard must be observed in the administration of justice."

38. I cannot agree with these submissions, and equally so, I cannot see how the applicant can successfully rely upon any of the relevant passages from Healy, Kenny or Shaw. The true issue, in my view that arose for consideration by the court in Healy was whether or not the right of access to a lawyer was constitutional in origin and whether there was any scope for a subjective element when considering the question of reasonableness in permitting or refusing such access.

Having dealt with those matters, the Supreme Court then had to consider a finding by the trial judge, that as it was impossible on the evidence to be satisfied that the incriminating statement had been completed prior to the time when the solicitor should have gained access, was it a correct conclusion in law to exclude that statement from the courts consideration. Finlay C.J. at p. 81 of the report, identified in these terms the vital issue as he saw it "… if a breach of the right of access to a solicitor has occurred as a result of a conscious and deliberate act of a member of the Gardá Síochana, is whether there is a causative link between that breach and the obtaining of an admission". It, therefore, can immediately be seen that the court was dealing with an incriminating admission which was made following upon, and consequent on, a breach of the applicant's constitutional rights.

Kenny, when dealing with a choice of applying a deterrent test or an absolute protection test where evidence had been obtained in breach of constitutional rights, the court revisited some of the points touched upon in Healy and also reviewed the judgment of the majority of the court in The People v. Shaw [1992] I.R. 1 From a relief point of view, however, the crucial issue was whether or not evidence obtained in breach of such rights should be excluded.

In Shaw a similar problem was before the court, which was whether in the context of a breach of constitutional rights a statement should be allowed in as part of the body of evidence or should be excluded.

As can therefore be seen, these three cases are fundamentally different to the circumstances existing in this action. Each judgment had a factual context of an unconstitutional act and a resulting detriment to the detained or accused person. No such basis exists in the case of Mr. T.H. As pointed out previously, he was never put on his election and he never made a statement or otherwise incriminated himself. Therefore, I cannot see how these cases are of assistance.

39. In addition, I cannot agree that the last sentence in the passage quoted from the judgment of Griffin J. in The People v. Shaw should be read as imposing as a matter of practice, an obligation, duty or responsibility on the court to effectively supervise the investigative activities of An Garda Síochána in circumstances where no unfavourable consequence has occurred to an accused. In particular, in my view, that sentence cannot be read as in any way applying to the discharge by the D.P.P., or on his behalf by the state solicitor, of their respective responsibility to the courts system and to the administration of justice. I know of no authority, save for those under particular statutory codes, where, in the absence of an established causal relationship between the act or event in question and a person's rights, the court has undertaken such a supervisory role. Indeed, the relevant case law is to the contrary, an example of which is The State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550. In that case, a passage from the judgment of McCarthy J. at pp. 581-585 of the report is most revealing, but it is quite clear that his remarks were founded upon the incontrovertible fact, that but for the state's actions, Mr. Trimbole would not have been physically available and therefore the extradition warrants could not have been enforced. Accordingly, the execution of the warrants was a direct and immediate consequence of his false arrest and detention. If that had not been the position it is quite clear that no relief would have been granted. See also The People (A.G) v. Murphy 1947 I.R. 236, where once again the central issue was the exclusion of a statement obtained by an improper inducement.
40. In addition to these Irish cases, I have also been referred to many US decisions which were opened, debated and discussed. These include Bram v. United States 168 US 532 (1897), Waley v. Johnston 316 US 101 (1942), Machibroda v. United States 368 US 487 (1961), McCarthy v. United States 394 US 459 (1968), Boykin v. Alabama 395 US 238 (1968) and United States v. Journet 544 F.2d 633 (1976). In my respectful view, however learned and informative these decisions are, I cannot see their direct relevance to this case or how otherwise they can assist the applicant. For example in Bram, one of the issues centred on the voluntary character of a statement by an accused person who had been convicted of murder and sentenced to death. In Waley, the petitioner sought to challenge his conviction on a plea of guilty, which he alleged was obtained through coercion and threats. Mr. Machibroda alleged that he pleaded guilty as a result of promises and threats made by the prosecuting attorney. At p. 493 of the report, Mr. Justice Stewart, giving the opinion of the court, held that these allegations required a hearing but also said "there can be no doubt that, if the allegations contained in the petitioner's motion and affidavit are true, he is entitled to have his sentence vacated. A guilty plea, if induced by promises or threats, would deprive it of the character of a voluntary act and is void." In McCarthy, the US Supreme Court considered Rule 11 of the Federal Rules of Criminal Procedure, which mandates a presiding judge, on an accused person offering a plea of guilt, to ensure that such person understands the nature of the charge and the consequences of the plea. In 1966 an amendment was introduced, which also required the judge to satisfy himself that there was a factual basis for the plea. Though Chief Justice Warren made some interesting observations about the nature of a guilty plea, he did so only in the context of deciding whether or not the Judge had complied with this rule. The challenge was made by Mr. MacCarthy who as a convicted person felt aggrieved. Finally in Boykin v. Alabama, supra, the issue once more centred on the petitioner's guilty plea and the requirements imposed by law on the trial judge in respect thereof.

It can, I think, evidently be seen that all of the individuals in the cases above mentioned had suffered adversely as a result of the acts, actions or omissions complained of and thus their resulting cases are in my view wholly distinguishable from the situation of Mr. H.

41. Notwithstanding these cases, and in particular those judgments decided in this jurisdiction, it is not to be concluded, that in all circumstances the courts are and would remain powerless if the primary agencies exercising supervisory or disciplinary power or other similar role, systematically and over time failed or defaulted in their functions or effect, with the result that the standards of justice constitutionally mandated were not being delivered upon. Thankfully, it is very difficult to see this ever becoming a live issue but yet if it, did this organ of government would seriously join issue in the resulting circumstances.

Walsh J., in his judgment in The People (At the Suit of the Attorney General) v. Gerald O'Brien and Patrick O'Brien [1965] I.R. 142, touched upon this topic when at p. 168-169 he said:-

"In my view it would properly be within the province of a court which learns in the course of a trial that evidence proffered has been obtained as a result of an illegal search and seizure, whether on the property of the accused or any other person, knowingly and deliberately carried out by the police, to publicly draw attention to that fact and in that, though perhaps remote, way effectually to control the actions of the police. But to render the evidence inadmissible on that account only and for the purpose of controlling the police would be to prefer the latter purpose to the competing but primary one of conducting a fair trial. If a stage should be reached where this Court was compelled to come to the conclusion that the ordinary law and police disciplinary measures have failed to secure compliance by the police with the law, then it would be preferable that a rule of absolute exclusion should be formulated rather than that every trial judge, when the occasion arises, should also be asked to adjudicate upon the question of whether the public good requires the accused should go free without full trial rather than the police should be permitted the fruits of the success of their lawless ventures. Apart from the anomalies which might be produced by the many varying ways in which that discretion could be exercised by individual judges, the lamentable state of affairs which would call such a change in the existing law of evidence would certainly justify absolute exclusion rather than a rule which might appear to lend itself to expediency rather than to principle."

Lest, it should be thought, that by dealing with this submission, I am in any way accepting, even by inference, that either the superintendent, in writing his letter of the 13^th December, 1996 or the D.P.P. or Mr. O'Hanlon when making submissions to the District Court, have acted otherwise than in an entirely correct manner, I wish to categorically state that at all times, these individuals, have discharged their duties and responsibilities to a proper and professional standard. I therefore reject this part of the applicant's submission.

42. Finally, within ground No. 1, it is also being submitted that the Director of Public Prosecutions continued with the same unlawful conduct even after he had opted to put s. 12(2) of the 1981 Act, in effect s. 13 of the 1967 Act, into play. This came about when Mr. O'Hanlon indicated in open court that the D.P.P. would consent under the said section 13. Great objection was taken to this. It was submitted on behalf of Mr. T.H. that it is only an accused person, who can initiate this section. In other words, unless and until a defendant, of his own volition, and prior to any request or enquiry, indicates his intention to plead, then this section cannot operate. Otherwise any prior indication by the D.P.P. can only be equated with undue pressure amounting to oppression.

If this be correct, it means that prior to any such indication, a District Judge cannot enquire of an accused person as to what his intentions might be and likewise the D.P.P. cannot indicate a favourable view on the question of consent to a disposal under s. 12(2) of the 1981 Act. If the D.P.P. should so indicate, as he did in this case, the applicant alleges that this amounts to the misconduct, of the same type though under a different heading, which occurred in relation to his attempted use of s. 12(1) of the 1981 Act. He points to Mr. O'Hanlon's submission that in 99.9% of cases "this is how it is done in the District Court", as confirmation of this.

43. Section 13 of the 1967 Act does not expressly deal with the manner in which this part of its provisions should be operated. What is clear, however, is that the court itself is entrusted with the obligation to manage this section. To "ascertain" means "to find out with certainty". That function, in my view, can and most frequently is carried out by the District Judge. I cannot see any reason why he or she should be prevented from making an enquiry to this effect at any time during the currency of the proceedings. Surely being a judge and performing a judicial function carries with it, at least a presumption that such an enquiry would not be tainted with any unlawful act or underlined by any improper motive. I therefore fail to see why such a judge, of his volition, cannot enquire of an accused person as to what his intentions might be, at least if prima facie the circumstances could render the said s. 13 applicable.

The accused person, of course, can also so do.

In addition, I see no reason for reading the section in the narrow and confined way as is suggested by the applicant. I see nothing objectionable, in principal, in permitting the D.P.P. to indicate his view. If, however, the occasion should be used for any unlawful or illegal purpose, such as the making of an inducement or the issuing of a threat or the indication of oppression, then the available law and the District Court are well capable of scrutinising such circumstances and of dealing with those if the same should arise. I believe s. 12(2) of the 1981 Act is a valuable provision which is entirely consistent with constitutional justice and which serves that course well, very frequently to the distinct advantage of an accused person.

I do not believe that I should read the decision of The Director of Public Prosecutions v. McDonnell and Smyth, High Court, Unreported, 13^th May 1994 as being in anyway in conflict with this view. The facts of that case are not entirely evident. It would appear that the District judge decided that the case before him could not properly be disposed of summarily. He felt that he had no jurisdiction, but instead of transferring the case to the Circuit Court, he dismissed the entire prosecution. Murphy J. in the High Court quashed that order and, in the process, referred to concerns which the District judge had, that the offer by the D.P.P. to consent under s. 13 might have appeared as an inducement to the accused person to plead guilty. On the facts Murphy J. was quite satisfied that this was not so.

In order, however, to allay any fears in this respect, I would say that any indication by the D.P.P. of his views should be expressed carefully so as to avoid even the remotest implication of the same amounting to, whether directly or indirectly, actually or potentially, an inducement, threat or other illegality. I would not, however, otherwise interfere with its operations. See s. 10 of the Criminal Justice Act 1999.

On the facts as I find them, I am totally satisfied that the actions of Mr. O'Hanlon, when representing the D.P.P., were fully genuine and entirely bona fide.

For the above reasons, I reject all of the submissions made by the applicant on this first issue.

44. Ground No. 2.

As appears from the first paragraph of this judgment, the second ground upon which the applicant was granted leave, by order of Morris P. on the 17^th February, 1997 was:

"That there has been a pattern of abuse of process and fundamental unfairness amounting to oppression and a denial of the right to constitutional justice which is in violation of Article 5.1 and Article 6 of the European Convention on Human Rights and Article 38.1 and Article 40.3 of the Constitution".

Under this heading the applicant now proposes to rely upon the following matters, both individually and cumulatively, to support the submission that he is entitled to an order of prohibition under this heading. These matters are as follows:

(i) The applicant's arrest, detention and interrogation (purportedly under s. 4 of the Criminal Justice Act 1984) was wholly unlawful

(ii) the comprehensive and compelling breach of the mandatory statutory duty imposed by s. 4(5) of the Criminal Justice Act, 1984;

(iii) the service on the applicant's mother of the summons for sexual assault which was a wholly oppressive abuse of the process of the courts;

(iv) the prejudicial non-disclosure of documents in disobedience of an order of the District Court;

(v) the oppression in withholding consent to summary disposal unless the applicant would plead "guilty" in the District Court; and

(vi) the attempt to defeat the order providing for preliminary legal argument and to coerce the applicant into an admittedly unlawful "election as to plea" on an admittedly unlawful arraignment in advance of that argument was wholly unlawful.

45. On the 29^th May, 1997, the first named respondent made an application to Morris P., who had granted the original leave, for clarification as to the boundaries of this second ground. The then learned President declined to make any further order and apparently took the view that it would be inappropriate for him to interpret his own order of the 17^th February, 1997. The position, therefore, appears to be that the ambit of this ground must be determined by reference to the appropriate documentation as it existed in February, 1997. That documentation includes the statement grounding the application, the affidavit of the applicant sworn on the 14^th February, 1997 and the affidavit of his solicitor, Mr. O'Sullivan, which was sworn on the 13^th February, 1997, together with the exhibits from both affidavits. This documentation, which I have examined, is incapable, in my view, of providing a satisfactory answer to this difficulty. For example, whilst both the statement and the relevant affidavits refer to the applicant's arrest, detention and interrogation, as well as to the service of the summons on his mother, there is no specific legal complaint about either. It therefore seems to me that this Court would be justified in adopting a narrow interpretation of this particular ground and declining to consider any matter, unless the same could fairly and reasonably be said to have been specifically raised at the leave stage. However, and notwithstanding a strong temptation to adopt this approach, I propose, in deference to the submissions so made, to deal with the points so raised. This, however, is subject to an important caveat. In the original application for leave, the applicant sought to rely upon five grounds. He was granted relief only on two, namely, by reference to the original statement, grounds numbered 19(A)(2) and (5).

He was refused leave on the other three. I therefore do not believe that it would be correct or proper, even if I was minded to so do, which I am not, to allow the applicant to argue, albeit under a different heading, any of these grounds. To do so, in effect, would mean the reinstatement of matters by this Court, when previously the same Court had declined to entertain them. Given the absence of any appeal against that refusal, I will decline to further consider them.

46. Matter No. (i): within Ground No. 2:

It is submitted that the applicant's arrest and subsequent detention 7^th October, 1995, under s.4 of the Criminal Justice Act, 1984, was unlawful in that:-

(a) there is no power to arrest and detain, for interrogation purposes, at common law;

(b) equally so, there is no such power under s. 4 of the 1984 Act;

(c) the member of An Garda Síochána who arrested him had no grounds to do so;

(d) the member of An Garda Síochána who detained him had no reasonable grounds for believing that his detention was necessary; and,

(e) having voluntarily attended at the Garda station on the 9^th September, 1995, there was no basis upon which he could, or should, have been subsequently arrested.

What was done, it is claimed, was calculated to exert psychological pressure on the applicant and was designed to circumvent the relevant requirements of the 1981 Act.

The case of Miranda v. Arizona [1966] 384 US 436 was cited in support.

47. The offence of sexual assault is an offence within s. 4(1) of the 1984 Act and accordingly, the provisions of that section were available in respect of the accused person.

Section 4(2) of the Act reads "Where a member of the Garda Síochána arrests without warrant a person whom he, with reasonable cause, suspects of having committed an offence to which this section applies, that person may be taken to and detained in a Garda Síochána station for such period as is authorised by this section if the member of the Garda Síochána in charge of the station to which he is taken on arrest has at the time of that person's arrival at the station reasonable grounds for believing that his detention is necessary for the proper investigation of the offence."

In this case, having being requested to so do, the applicant did attend voluntarily at McCurtain Street Garda Station on 9^th September, 1995, but this fact of itself could not possibly operate as a bar or prohibition on the Gardaí making subsequent use of s. 4, if circumstances otherwise justified it.

48. In para. 6 of his replying affidavit, sworn on 18^th June, 1997, Superintendent Brennan points out that on 7^th October, 1995, the applicant was arrested by Sergeant Brosnan at 11.03 a.m., was taken to Mayfield Garda Station and was there detained, under s. 4 of the 1984 Act, by Garda John O'Connor, who was the member in charge at that time. A statement of evidence of Sergeant Brosnan and also a statement of evidence of Garda John O'Connor are amongst the documents exhibited by the applicant in his grounding affidavit. Sergeant Brosnan's evidence in this regard is as follows, "At 11.03 a.m. on 7^th October 1995 I arrested T.H. at his home, on suspicion of committing sexual assault on 23^rd June, 1995. Accompanied by Garda T. Murphy, we took the prisoner to Mayfield Station. I made an application to the member in charge, Garda John O'Connor, to have the prisoner detained under s. 4 of the Criminal Justice Act. The grounds for such application were that I was in possession of a statement from a complainant which named the suspect as a man named "…" from … and the injured party had given me a description of the suspect which suited Mr. H. I was also in possession of a written statement from the person who had admitted his part in the sexual assault and he also had named a (person from the same street), as having been involved. Garda O'Connor acceded to my request."
49. In his statement, Garda O'Connor, having pointed out that on 7^th October, 1995, he was on duty as S.O. and member in charge at Mayfield Garda Station, continues, "At 11.15 a.m. Sergeant Brosnan arrived at the station with a person in his custody. The prisoner gave his name and address as T.H. Sergeant Brosnan informed me that he had arrested T.H. at 11.03 a.m. for suspicion of a sexual assault. Sergeant Brosnan then made an application to detain the prisoner under the provisions of s. 4 Criminal Justice Act, 1984. His reasonable grounds of suspicion were as follows: a written statement had been made by the injured party J.K., naming a "…" as being the culprit and also gave an accurate description of the culprit. T.H. was named in a cautioned statement taken from a defendant, A.B., who had admitted in his part in the assault. I was satisfied from this information that the detention of T.H. under the provisions of s. 4 Criminal Justice Act, 1984 was necessary for the proper investigation of the case."
50. On this evidence I am totally satisfied that Sergeant Brosnan had legal cause for arresting the applicant, as he did on 7^th October 1995, and that the member in charged had, within the meaning of the relevant phrase in s. 4(2) of the 1984 Act, "reasonable grounds for believing that his detention was necessary for the proper investigation of the offence." In addition, no complaint was made about Mr. T.H's arrest and detention by his solicitor, who was present at Mayfield Garda Station on 7^th October, 1995, or by Mr. O'Sullivan in correspondence with the D.P.P., with the Gardaí authorities or with the State Solicitor, or indeed by counsel to the District Court on the several occasions when the case was before that court in 1996 and 1997. Furthermore, there are no grounds whatsoever, in my view, for making any criticism, express or implied of the Gardaí in respect of their conduct in the arrest and detention of this man, or in respect of the operation of s. 5, also of the 1984 Act. Therefore I would reject the submissions made under this heading.
51. Matter No. (ii)

The applicant in this part of his submission claims that by reason of what occurred in the afternoon of his detention, which took place on 7^th October, 1995, the Gardaí were in breach of s. 4(5) of the Criminal Justice Act, 1984 and also in breach of the judge's rules.

Section 4(5) of that Act reads as follows:-

"(5). Where a member of the Garda Síochána has enough evidence to prefer a charge for an offence against the person detained in a Garda Síochána station pursuant to this section, he shall without delay charge that person or cause him to be charged unless that person is, with reasonable cause, suspected of another offence to which this section applies and the member of the Garda Síochána then in charge of the station has reasonable grounds for believing that the continuance of his detention pursuant to this section is necessary for the proper investigation of that offence". Though this provision was repealed and replaced by s. 2 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, it still remains applicable given the dates involved in this case.

52. It is claimed on behalf of Mr. T.H that following the identification parade that took place in the afternoon of 7^th October, the Gardaí should have immediately charged the applicant with the offence of sexual assault if they were satisfied that there was enough evidence at that time to justify such a charge. This they did not do. Instead, it is alleged that they continued to interrogate the applicant for a further forty minutes, which was a "flagrant breach of the judge's rules". If, on the other hand, there was not sufficient evidence to charge the applicant at that time, then he should never have been charged, as no new evidence emerged following the 7^th October, 1995.
53. As stated at para. 49 above, the relevant Garda statements, information and records, in relation to this matter are contained in exhibit No. 4 of both the applicant's and his solicitor's affidavits. It would appear that, during the course of an interview, the applicant was asked by Sergeant Brosnan and Garda Murphy whether he would be willing to attend an identification parade. He immediately sought and obtained the advice of his solicitor. He agreed to so do. That parade was organised by Sergeant Horan and commenced at about 4 p.m. During the course of it he was identified by the complainant. He was then cautioned by Sergeant Horan and replied "I've heard it all before". The sergeant recorded this in his notebook. The parade finished within about ten minutes. At 4.20 p.m. he was taken to the interview room and asked by either Sergeant Brosnan or Garda Murphy whether he had any comment on what had occurred during the course of the parade. The Garda note of what had occurred was then read to him and, whilst agreeing that it was correct, he refused to sign it. Both of these Gardaí then left the interview room at approximately 4.40 p.m. About five minutes later Sergeant Horan visited the prisoner and read over his note of the applicant's response when identified during the course of the parade. Again Mr. T.H agreed that the note was correct but refused to sign. He was released from custody without charge at 5 p.m.
54. There is no real evidence to suggest that the applicant was subject to forty minutes of interrogation between 4.20 and 5 p.m. This is not asserted in the statement of grounds or indeed in the affidavit of Mr. T.H. It is raised by way of submission. That, in my view, is insufficient given the statements of the three Gardaí, which, as I have said, constitute part of exhibit No. 4. I am therefore entirely satisfied that it was quite reasonable and proper for Sergeant Brosnan and Garda Murphy to ask the applicant to comment on his purported identification during the course of the parade and also for Sergeant Horan to read over his notes of the applicant's reply when so identified. Apart from the raising of these questions, there is no evidence to suggest that any further form of questioning, let alone interrogation occurred during these forty minutes. Nor is there any evidence to suggest that he was detained longer than what was permissible under the section. I would therefore entirely reject the suggestion that such interrogation took place.

In my view, s. 4(5) of the 1984 Act cannot be read in the manner suggested by the applicant. It seems to me that the whole intention and aim of the subsection was to ensure that a person would not be detained in custody any longer than what was necessary for the proper investigation of the offences. Once that justification no longer existed, then the person, unless he was suspected of another offence, had to be charged or released. In applying the subsection to the facts of this case I have come to the following conclusions:-

(a) that it is for the Gardaí in question to make a fair assessment of the evidence when deciding whether or not to prefer charges against a detained person and once the assessment made is fair, then a court should not on subsequent examination, fault that decision even if it or indeed other members of the Gardaí would come to a different conclusion: see Keating v. Governor of Mountjoy Prison [1991] 1 I.R. 61 at 67,

(b) that the Gardaí in question can at any time release a detained person from the provisions of s. 4(5),

(c) that such a release can take place without charge in circumstances where the relevant Gardaí reasonably and bona fide wishes to obtain the instructions of the Director of Public Prosecutions and

(d) any later or subsequent charging of that person by the D.P.P. is not invalid merely because the accused person might have been charged at an earlier date by the relevant Garda.

See D.P.P. v. O'Toole & Hickey, Court of Criminal Appeal, 20^th July 1990 and also the High Court decision in McCormack v. Director of Public Prosecutions, High Court, 20^th March 1997.

In this case, given the nature of any proposed charge, and given the fact that the investigation was a joint one, it was not in my view in any way a breach of s. 4(5) of the 1984 Act for the applicant to have been released from s. 4 detention on the 7^th October, 1995 without charge and subsequently on the instructions of the D.P.P. to have a summons issued against him.

55. Matter No. (iii)

The summons which issued, charging the accused person with the offence of sexual assault, was served on the applicant's mother at the family home on 27^th September, 1996. It is submitted on his behalf that this amounted to misconduct which was "repugnant to every concept of decency". It was suggested that this was to bring psychological pressure to bear on the applicant and that the same was fundamentally unfair, oppressive and in violation of constitutional justice. The passage from The People v. Shaw [1982] I.R. 1 at 61, which it is claimed, was endorsed by the Supreme Court in The People (D.P.P.) v. Healy [1990] 2 I.R. 73 at pp. 80 – 81, was cited in support. Superintendent Brennan, in the substantive replying affidavit, states that the summons was served on a person who was over the age of 16, at the plaintiff's residence and denies any deliberate intention to serve the applicant's mother or indeed any other particular person (presumably with the exception of the applicant), in the house. This method of service it is claimed is provided for by law.

56. Rule 47 of the District Court Rules (No. 1), 1962 (S.I. No. 7/1962) provides as follows:

47 (2)(a) A summons may be served on a defendant to whom it is directed by delivering to him a copy thereof issued for service or by leaving such copy for him at his last or most usual place of abode or at his office, shop, factory, home or place of business with the husband or wife of the defendant or with a child or other relative (residing with the defendant) of the defendant himself or of his wife or her husband as the case may be, or with any agent, clerk or servant of the defendant, or with the person in charge of the house or premises wherein the defendant usually resides, provided that any person (other than the defendant himself) with whom such copy is left for the defendant is not under sixteen years of age and is not the complainant.

The mode of service of the summons in this case would appear to fall within (2)(a) of Rule 47 and consequently would appear to be authorised by that rule. It was therefore served lawfully in accordance with these provisions. However, as with all rules of court, their existence and their operation must be subject to constitutional and natural justice. Whilst I believe that service in this case did not violate either of those principles, I would be of the view that in general it would be more preferable to serve this type of summons personally on an accused person. Particularly where there is no difficulty in effecting such personal service. In a matter such as the present, which is most serious and also for the accused person most sensitive, I cannot but believe that, where there is no difficulty in effecting personal service, then that type of service should be aimed for and achieved. However, since I don't believe that there was any improper motive, purpose or intention behind the manner of service in this case and since the same was served in accordance with Rule 47of the District Court Rules, as then applied, I cannot agree that the service effected was in breach of the applicant's rights.

58. Matter No. (iv)

The substance of this point is an allegation that the applicant has been prejudiced by an alleged non-disclosure of documents on the part of the Director of Public Prosecutions, in disobedience of an order of the District Court made on 22^nd October, 1996. Precisely what documents are being referred to, was not identified in either the statement grounding the application or in the supporting affidavit of the applicant. However, in his submissions it became evident that the focus of this attack was a memorandum of an interview which the Gardaí had with one A.B., who was also the subject matter of the investigation. That memorandum was numbered "10" on the relevant Gardaí file. The applicant alleges that Superintendent Brennan wrote an untruth when, in his letter dated 7^th November, 1996, he enclosed to Mr. O'Sullivan what he described as "copy file as requested". This file, to his knowledge did not include this document. Moreover, given that the Gardaí/D.P.P. were fully aware that this document was omitted, they breached, by deliberate disobedience, the provisions of the said District Court Order.

Superintendent Brennan deals with this matter at para. 25 of his affidavit. In essence, he points out that the relevant file was a joint file involving the applicant and Mr. A.B., and that Sergeant Brosnan, who dealt with this issue of disclosure on his behalf extracted from the combined file all documents having any reference directly or indirectly to Mr. T.H.. He stated that Sergeant Brosnan, who used this criteria, took the view that the memorandum of interview with A.B. was not relevant and hence was not enclosed as part of this file.

This explanation is utterly rejected by and on behalf of the applicant.

57. Could I firstly say that this matter was one of four issues comprehensively argued by Dr. White S.C. before the President of the District Court on 23^rd January, 1997. No relief was granted in respect thereof. Secondly, in the original application seeking leave from this court, ground No. 4 sought to re-open, effectively, the President's decision on this particular point. As is evident from the original order of Morris P., made on the 17^th February, 1997, leave was refused in respect of this matter. I therefore do not believe that the same can be re-instated, albeit under or within part of a different ground. In my view, to so permit would be to entirely disregard the leave order, an approach which I am not prepared to adopt. In those circumstances, I would hold that this matter is not open for debate.
58. Even however, if I should be wrong in this interpretation, I would have no hesitation in coming to the conclusion that the approach adopted by Superintendent Brennan, through his nominee Sergeant Brosnan, was a response entirely appropriate to the District Court order of October, 1996. I cannot identify any wrongdoing or misconduct on the part of the Gardaí in their attempts to comply fully with this order. In addition, there is no evidential basis for suggesting that prejudice resulted to Mr. T.H by not having sight of this memorandum of interview. Accordingly, I cannot share the views of the applicant in relation to this matter and therefore I would have to conclude that, for the reasons given, this ground, both in principle and on its merits, is unsustainable.

The point, which the applicant seeks to argue under this heading, is precisely the same point as that which is raised in Issue No. 1. This is that the D.P.P. acted oppressively, unlawfully and unconstitutionally in the manner in which he sought to give and withhold his consent under s. 12 of the 1981 Act in the manner in which he sought to operate s. 12(1) of that Act by insisting upon a plea of guilty from the accused person and, finally, in the manner in which he brought pressure to bear on the same person to so plead. All of these matters are dealt with under that issue in an earlier part of this judgment, and accordingly I would respectfully adopt the conclusions previously reached for the purposes of answering the second ventilation of this said point.

This is the last matter which falls to be dealt with under the second ground upon which leave was obtained. It refers, once again, to the order of the District Court made on 3^rd December, 1996, whereby the court agreed to have a preliminary hearing on certain matters. It is claimed that the actions of the Gardaí, through the Superintendent's letter of 13^th December and the submissions made to the District Court on 17^th December, were all designed to defeat the applicant's constitutional right to have this preliminary argument heard, and secondly, were also part of a campaign to force the applicant onto his "election as to plea." Once again these matters were fully debated and explored before the learned President, who rejected all of the submissions so advanced in his ruling of 23^rd January, 1997. Once again ground No. 3 of the original statement grounding the judicial review application sought leave on these two points, namely, the attempt made by the D.P.P. to avoid the hearing which ultimately occurred on 23^rd January, 1997, and secondly, his attempts, allegedly supported by the Gardaí, to force the applicant into an unlawful arraignment. The former President of the High Court did not grant leave on this ground and, on a point of principle, I could not entertain the re-opening of this under a different heading. In any event, it is, in substance, covered by the decision reached in an earlier part of this judgment.

61. In conclusion, therefore, on ground No. 2, I do not agree that the individual matters raised within this ground, either when considered separately or when considered cumulatively, give rise to any possible justification which would enable this court to grant the relief sought or indeed any relief arising therefrom. Therefore I reject this second ground.

Before I commence to deal with the third issue, it might be opportune to mention that the Director of Public Prosecutions, as well as making submissions on each of the above individual matters, also made two points of general application on this ground number two. Firstly, he says that many of the matters raised are more properly matters for a court of trial, and secondly, he invites the court to treat this ground with a not inconsiderable suspicion as in his view it bears a remarkable similarity in style presentation and content to certain submissions made in another case, namely Barry v. Director of Public Prosecutions & Others, High Court, 14^th February 2003. With regard to the last mentioned point, one could understand how the D.P.P. might have reached such a view, but at the same time it is important to recognise the duties which legal advisors of an accused person have in discharging their responsibilities to him. On the first point raised I entirely share the submission of Mr. McDonagh S.C. I have no doubt whatsoever that several of the matters above mentioned are matters properly to be dealt with in a court of trial. Certainly, for my own part, before the views of the presiding judge are known, I would be very reluctant to permit High Court judicial proceedings to be taken in respect thereof.

Ground No. 3

62. By order of this court dated 9^th December, 2002, the applicant was granted liberty to amend the statement grounding his application for judicial review by the addition of the following ground, which in this judgment is referred to as ground No. 3. This reads as follows " … there has been delay which would make the further prosecution of the alleged offence otherwise than in accordance with law and contrary to Article 38.1 and Article 40.3 of the Constitution and Article 6 of the European Convention on Human Rights". As with grounds Nos. 1 and 2, there is a period of time which is relevant to this issue. It seems to commence with the original leave order made by Morris P. on 17^th February, 1997 and continue up to 20^th November, 2002, the relevance of which date will appear in a moment. During this period the more significant dates and their corresponding events can be described as follows

17^th Feb 1997: Order granting leave to seek judicial review

10^th Mar 1997: Time extended for the filing of a statement of opposition

7^th Apr 1997: Further extension of time for the filing of the said statement

14^th Apr 1997: Further extension of time for the filing of the said statement

28^th Apr 1997: Further extension of time for the filing of the said statement

12^th May 1997: Further extension of time sought by the D.P.P. so as to enable him to apply to Morris J. to limit the scope of the order granting leave

29^th May 1997: Morris J. refuses to interfere with the said leave order

9^th Jun 1997: Further extension of time for the filing of the said statement of opposition

18^th Jun 1997: Statement of opposition filed by the first named respondent

7^th July, 1997 A general order for discovery made directing the D.P.P. to file his affidavit of documents within seven days from the date thereof.

4^th Dec 1997: Superintendent P.J. Brennan swears the affidavit of discovery on behalf of the D.P.P.

9^th Dec 1997: The applicant makes complaints about the alleged inadequacy of discovery and is directed by Geoghegan J. to issue a notice of motion in respect thereof.

3^rd Feb 1998: The said notice of motion issues wherein two reliefs are sought, the first being an order that the D.P.P. make discovery in proper form and the second an order directing the said D.P.P. to produce for inspection documents in the second part of the first schedule in respect of which a claim for privilege is made.

19^th Feb 1998: The replying affidavit of Superintendent P.J. Brennan is sworn.

23^rd Feb 1998: The motion is adjourned to permit the filing of a further affidavit, in response, by and on behalf of the applicant.

27^th Feb 1998: Affidavit in reply of Mr. Denis O'Sullivan, solicitor, is sworn.

2^nd Mar 1998: Adjourned to 9^th Mar 1998

3^rd Mar 1998: Application not reached in the court list: adjourned to 23^rd Mar.

23^rd Mar 1998: Application not reached and the motion is transferred to the next list to fix dates, with an application for priority being refused.

24^th Mar 1998: Case not reached in this list to fix dates.

2^nd Jul 1998: The notice of motion is heard before Geoghegan J., who delivers an ex tempore judgment in respect thereof.

3^rd Jul 1998: The order of the High Court, reflecting the said judgment, is drawn. It is ordered that the D.P.P., through Superintendent Brennan, make further and better discovery in the form of a corrective affidavit:-

(a) correcting the admitted errors in the existing affidavit,

(b) making it clear that the deponent had, prior to the first affidavit of discovery, ascertained from the D.P.P. that no further documents were or had been in his possession,

(c) making it clear that the plea of privilege and of public interest immunity had been raised on the instructions of the D.P.P.

17^th Jul 1998: The "corrective" affidavit of Superintendent Brennan is sworn

21^st Jul 1998: Applicant's notice of appeal to the Supreme Court against the 3^rd July order.

28^th Jul 1998: Having read the documents in respect of which the pleas of privilege and public interest immunity were raised, Geoghegan J. directs that document No. 20 in the second part of the first schedule of the first affidavit of discovery be disclosed, but refused relief in respect of all other documents.

17^th Aug 1998: Applicant's notice of appeal to Supreme Court against this said order.

12^th Nov 1998: The first named respondent agrees note of judgment delivered on 28^th July, 1998.

23^rd Nov 1998: Composite books of appeal to cover both notices of appeal, including a note of both judgments, filed in the Supreme Court office.

12^th Mar 1999: The Supreme Court, on the application of counsel for the applicant, orders that both appeals be consolidated.

5^th & 6^th Dec 2000: The Supreme Court hears both appeals.

30^th Jan 2001: The Supreme Court gives judgment and orders that a letter dated 29^th May, 1996, sent by the D.P.P. to the state solicitor in Cork, be discovered to the applicant, who is also granted his costs.

8^th May 2001: The D.P.P. discloses an edited version of the said letter dated 29^th May, 1996 and alleges that the letter, in this form, is in compliance with the said order of the Supreme Court dated 30^th January 2001.

16^th May 2001: Mr. Denis O'Sullivan, solicitor on behalf of the applicant, refuses to accept the letter in this form and insists upon full disclosure of its content.

5^th Jul 2001: The D.P.P. reiterates his view that the edited version is in compliance with the said order.

11^th Jul 2001: Mr. O'Sullivan insists upon full disclosure and suggests that the Director of Public Prosecution, personally, be acquainted with the situation.

14^th Feb2002: The D.P.P. issues a motion seeking to have these said proceedings put into the list to fix dates, asserting in his supporting affidavit that "this application is now ready for hearing".

11^th Mar 2002: At the hearing of this motion, the High Court adjourns the matter to allow an application to be made to the Supreme Court.

21^st Mar 2002: The first named respondent issues a motion returnable before the Supreme Court seeking to amend the order previously made by it on 30^th January, 2001.

12^th Apr 2002: The said first named respondent applies to have the said motion dealt with by the same division of the High Court which heard the original appeal.

The Supreme Court directs the D.P.P. to file written submissions on or before the 9^th September, with the replying submissions to be filed on or before 7^th October.

3^rd Oct 2002: The first named respondent files his said submissions.

10^th Oct 2002: The Supreme Court adjourns the motion to 21^st October in order to afford the applicant an opportunity of considering the said submissions and responding thereto.

17^th Oct 2002: Written submissions are filed on behalf of the applicant.

21^st Oct 2002: The Supreme Court dismisses the said notice of motion and orders the first named respondent to pay to the applicant his costs of the said application.

23^rd Oct 2002: Mr. O'Sullivan seeks inspection facilities in respect of the said document.

23^rd Oct 2002: The first named respondent encloses a full copy of the said letter.

5^th Nov 2002: Mr. O'Sullivan insists upon facilities to inspect the said document.

11^th Nov 2002: Adjourned for two weeks in the non-jury list so that inspection can take place.

12^th Nov - 15^th Nov 2002 The applicant's solicitor again insists upon inspection facilities.

18^th Nov 2002: Letter dated 14^th November from the first named respondent is received by Mr. O'Sullivan, advising that inspection facilities are in situ and can be activated by prior arrangement with the state solicitor in Cork.

20^th Nov 2002: The said letter dated 29^th May, 1996 is produced for inspection.

64. The period of time in respect of which the applicant complains extends for the entire period from the 7^th October, 1995, when he was first arrested, up to, and including, 20^th November, 2002, which, as can be seen from the above summary of events, was the date on which the D.P.P. finally made available for inspection the document ordered for disclosure by the Supreme Court. As is evident, this time span includes the fourteen month period from the date of the victim's complaint to the Gardaí to the date of service of the relevant summons. That this said period constituted a delay that violated the applicant's constitutional rights was argued as one of the grounds before the President of the District Court, who rejected the submissions made in respect thereof. In addition, however, it also constituted Ground No. 1 in respect of which Morris P. refused leave by virtue of his order dated 17^th February, 1997. A difficulty then arises as to whether the order dated 9^th December, 2002, which permitted the original grounds to be amended, can or should be read as including this period. The affidavit of the applicant sworn on 21^st November, 2002, which was relied upon to move the later application, commences the chronology of events complained of with the arrest of the accused person on 7^th October 1995. On one reading of this documentation, therefore, there is nothing which evidently restricts any reliance on this earlier period. However, as against that, one might argue that since the applicant was specifically refused leave on this ground in his original application, then he should not now be permitted to rely upon it.
65. In my opinion, this situation can be distinguished from the original Grounds Nos. 3 and 4 in respect of which, in an earlier part of this judgment, I refused to permit reinstatement. The reason is this. As of February, 1997, the court was evidently satisfied that there was no substance in the delay point, which covered this period only. However, as of December, 2002, which was almost five years after the original order, it was perfectly possible for this court to conclude that the period of delay was then so significant that a resulting violation of the applicant's rights was at least an arguable point. So to permit reliance on this fourteen month period, as part of the overall delay, would not in my view be in anyway inconsistent with the original order as made. Consequently, I propose to consider this fourteen month period not, however, as a discrete time span standing on its own, but rather as part of the overall period alleged to constitute delay in this case.

Even, however, if I am wrong in this assessment, this period undoubtedly also has relevance to the weight and significance which should be attached to any later periods which are relied upon. So on either basis the period cannot be ignored.

66. On behalf of the applicant it is submitted that under Article 38.1 of the Constitution an accused person is guaranteed a positive right to a speedy trial. The following passages from, firstly, Hogan v. President of the Circuit Court [1994] 2 I.R. 513, and, secondly, Cahalane v. Murphy [1994] 2 I.R. 262 were referred to in support:-

"Applying those principles to the facts of this case, I am satisfied that quite apart from any question of a prejudice in the defence of the applicant, there is clear evidence that the state authorities in the bringing forward of this prosecution have disregarded what I am satisfied is their obligation to provide for and protect the right of an accused person to an expeditious trial as a positive constitutional right." See Finlay C.J. at p. 521 of the report in Hogan:

"Furthermore, the manner in which the problems arising from the taking of depositions at the request of the State was dealt with would appear to indicate a complete failure to give the applicant's undoubted right to an expeditious trial the priority which it deserved." See Finlay C.J. at p. 284 of the report in Cahalane.

In D.P.P. v. Byrne [1994] 2 I.R. 236, Finlay C.J. at pp. 246/247 of the report expressed the view " … that, with regard to the type of delay which is involved on the issues in this particular case, it is not valid to distinguish between the activity of the members of the Garda Síochána as an agent of the prosecuting authority on the one hand, and the activities of other State servants engaged in the administration of the courts service on the other hand, if the combined effect of these activities or the effect of one or other of them constitutes an infringement of one of the accused's constitutional rights." In the same case at p. 257 Denham J. said "the fact of the delay, be it by the Director of Public Prosecutions' office, the garda office, or other State or court agency, is a potentially detrimental matter to the accused for which the prosecution has to answer in court."

In all of these cases, the High Court's judgment in The State (Healy) v. O'Donoghue [1976] I.R. 325 and the Supreme Courts judgment in State (O'Connell) v. Fawsitt [1986] I.R. 362 were referred to as acknowledging or conferring this said right to reasonable expedition.

67. In addition, as previously stated Mr. T.H also relies upon the European Convention of Human Rights, as well as several decisions from the US. The entire chapter dealing with Article 6 of that convention, which is part of the impressive work entitled "Law of the European Convention on Human Rights" by Harris, O'Boyle and Warbrick was handed into this court, as were copies of the judgments of the US Supreme Court in United States v. Marion 404 US 307 [1971] and Barker v. Wingo 407 US 514 [1972]. A decision from the High Court in Wellington in the case of Hughes v. Police [1995] 3 NZ LR 443 was also opened to me.

With regard to the Convention, it should be said that prior to the coming into force of the European Convention on Human Rights Act 2003, the Articles of the Convention did not have the force of law in this jurisdiction though the judgments of the court, particularly in latter years have been increasingly influential in our jurisprudence. Even, however, if the convention was part of our domestic law, I don't think reliance upon it, is essential for the purpose of this case.

68. It is claimed on behalf of Mr. T.H. that the D.P.P. must have been aware, from the argument advanced in the District Court on 23^rd January, 1997, that there was on the defence side, even then, a serious concern about the question of delay. Though unsuccessful, this submission should have prompted the D.P.P. to move with great expedition through the judicial review proceedings and should have been a warning to him that no unnecessary delay should occur prior to the applicant's trial.
69. In addition, it is, I think correctly, stated that the following paragraph in an affidavit sworn by Mr. H on 21^st November 2002, stands uncontradicted. Therein he avers

"8. I say that the period of time during which I have been kept in the criminal process has been especially oppressive for me because of the nature of the alleged offence. I say that for more than seven years my whole life has been dominated by the ongoing proceedings and the pending prosecution. There is no point in trying to advance myself because everything would be destroyed just by the publicity surrounding even a successful defence of the charge. In the community in which I live, any publicity or association of me in relation to such a charge would in reality be the same as a conviction and I would be tarred with a brush which would destroy both myself and my family. I say that every single day I have had feelings of despair about this situation and that I have been psychologically traumatised by the past seven years."

70. Dr. White S.C., on behalf of the applicant, identifies, in particular, three specified periods within these proceedings, in respect of which he complains. Firstly, from 10^th March 1997, when the statement of opposition should have been filed, to 18^th June, 1997, when in fact it was filed: a period of about 13 weeks. Secondly, the period from 7^th July, 1997 to 17^th July, 1998. On the first date mentioned, the High Court made a general order for discovery against the D.P.P., allowing a period of one week for the resulting affidavit. Ultimately, it was not until 17^th July, 1998, that a corrective affidavit as to documents, ordered by Geoghegan J., was in fact sworn. Thirdly, the period, from 30^th January, 2001, to 20^th November, 2002, which it took the D.P.P. to comply with the order of the Supreme Court made on the said 30^th January, 2001. The passage of these time periods have resulted in the applicant being denied his right to a trial with reasonable expedition under Article 38.1. Moreover, any time span within these periods which could not be directly attributable to the D.P.P. makes the "delay periods" all the more significant. In conclusion, therefore, the applicant's trial should not now be permitted to proceed.
71. Mr. McDonagh S.C., in reply, denied that there was any fault or responsibility on the part of either the D.P.P. or the Gardaí and suggested that any delay which occurred had resulted from the actions of the applicant himself and "the manner of the prosecution of these proceedings", a phrase which appears at paragraph (vi) of the amended statement of opposition. This expression, though raised only occasionally in the case, was always lurking in the background, but was not however pursued when it became clear, at least to me, that no criticism was being made of the applicant's legal team in respect of the manner in which these proceedings have been prosecuted. Counsel also claimed that one cannot ignore these judicial review proceedings and one must firstly enquire as to who is responsible for any delay which may have occurred since February, 1997. If the answer to that enquiry leads to the applicant, then such resulting period or periods cannot be reckonable for the purpose of placing any responsibility on the D.P.P. Mr. McDonagh S.C. also suggested that

pre-complaint delay cannot be taken into account when assessing an alleged breach of an accused person's right to a trial with reasonable expedition, such being relevant only in considering a person's right to a trial in due course of law. This submission, though highly interesting, has no real application to this case as on no interpretation of the dates could one suggest that there was any pre-complaint delay as such. Finally having stated that the accused person could without reservation even now obtain a trial in due course of law, he forcibly concluded by submitting that in the circumstances of this case there was of breach of Mr. T.H's right to a trial with reasonable expedition.

72. In D.P.P. v. Bryne, [1994] 2 I.R. 236, which was not a case involving sexual assault, but rather a prosecution under the Road Traffic Act, 1961, Finlay C.J., in addition to making the observation which is set out at paragraph 68 of this judgment, also referred to Barker v. Wingo [1972] 407 US 514 and quoted with approval the observations of Powell J., which at p. 532 of the report appears as follows:-

"prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right is designed to protect. This Court has identified three such interests: (i) to present oppressive pre-trial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired". These three reasons, underpinning the right to a trial with reasonable expedition, have subsequently, on many occasions, been re-affirmed by our courts in both sexual and non sexual delay cases.

73. In P.C. v. Director of Public Prosecutions [1999] 2 IR 25, Keane J., of the Supreme Court, outlined the history of an accused person's right to a reasonably expeditious trial and in the process cited Barker v. Wingo, supra. He then referred to the instant case before that court, which evidently belonged to the particular category of case which had been identified by Finlay C.J. in his judgment in Hogan. These cases involve sexual assaults perpetrated on young children many years prior to the first complaints being made in respect thereof. At p. 68 of the report, Keane J. continued "manifestly, in cases where the court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the court will be whether it has been established that there is a real and serious risk of an unfair trial: that, after all, is what is meant by the guarantee of a trial " in due course of law". The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of the accused to defend himself or herself will be impaired. In other cases, the first enquiry must be as to what are the reasons for the delay and, in a case such as the present where no blame can be attached to the prosecuting authorities, whether the court is satisfied as a matter of probability that, assuming the complaint to be truthful, the delay in making it was referable to the accused's own actions".

The passage last quoted was referred to by Mr. Justice Geoghegan when giving judgment in P.P. v. Director of Public Prosecutions [2000] 1 IR 403, which case could be described as involving prosecutorial delay. Having so referred to this passage, the learned judge, at p. 409 of the report, then continued "It is not acceptable and, in my view, is a breach of a defendant's rights under Article 38.1 of the Constitution for the prosecuting authorities to allow unnecessary delay to occur in a case such as this, involving sexual offences committed many years ago. The necessarily delayed trial is most unfortunate, but it is wholly intolerable that it should be postponed still further due to unnecessary delays on the part of the prosecuting authorities. I am using this expression "prosecuting authorities" to cover the Director of Public Prosecutions and the Gardaí Síochána". On the following page Geoghegan J. continued "faced with that situation, I have to decide whether I prevent the trial from proceeding. …. I think that where there has been a long lapse of time, as in these prosecutions for sexual offences, between the alleged offences and the date of complaint to the guards, it is of paramount importance, if the accused's constitutional rights are to be protected that there is no blameworthy delay on the part of either the guards or the Director of Public Prosecutions. If there is such delay, the court should not allow the case to proceed and additional actual prejudice need not be proved. … But, in my view, a constitutional right has been clearly infringed and therefore the trial should not be permitted to proceed."

The same judge, when giving the unanimous judgment of the Supreme Court in B.F. v. Director of Public Prosecutions, [2001] 1 IR 656 endorsed what he had previously said in P.P.

Whilst I appreciate that the facts in P.P. involved considerable delay between the date of the alleged offences and the date of first complaint, nevertheless I cannot see why, in principle, the observations of the trial judge, insofar as these relate to the constitutional right of a trial with reasonable expedition and the consequences which follow from a breach thereof, should not equally apply, even where there is pre-complaint delay, but where otherwise the circumstances so permit.

74. This observation last made must also now be considered in the context of the later decision of P.M. v. Malone [2002] 2 IR 560. That case involved what the Chief Justice described as two unusual features, namely the relative similarity in the ages of the complainant and the accused person (who also was not in a position of authority over her) and, secondly, the delay of over seven years between the date on which the Gardaí were firstly aware of the allegations in question and the subsequent charging of the accused person. Accordingly, the factual details of that case are not of direct relevance to this judgment, but the view of the Supreme Court on some of the more relevant legal principles are of particular interest to us.

These said views can be summarised as follows:

(a) the right to a trial with reasonable expedition has been recognised as an essential feature in our system of law for many years,

(b) this right has a constitutional foundation and origin,

(c) the existence of this right is designed (i) to protect an accused person from oppressive pre-trial incarceration, (ii) to minimise his anxiety and concern and (iii) to limit the possibility that the defence will be impaired: see Barker v. Wingo, supra,

(d) the enforcement by the court of this right is not merely intended to vindicate and protect the rights of an accused person in the area of criminal justice but also to uphold the public interest in a speedy prosecution of all such crime,

(e) the consequences which may follow from the absence of a trial being held with reasonable expedition are varied and several. These include, but are not limited to, actual or presumptive prejudice, as well as an impairment of the person's ability to defend himself,

(f) where such a right has been breached, that violation, in itself and without further consequences, may be sufficient to prohibit the continuation of a trial, though in what circumstances this will follow is not capable of exact description or definition,

(g) where there are further consequences of a detrimental nature, then such description or definition is more readily ascertainable

(h) where the consequences result in a real and substantial risk of an unfair trial, then, given the hierarchical position of this last mentioned right, any further continuation of a trial will be prohibited, see D. v. Director of Prosecutions [1994] 2 I.R. 465, and

(i) where the consequences, however, do not so establish such a real and substantial risk, then the court must engage in an exercise of evaluating the respective positions of an accused person whose right has been violated, as against the right of the general public to prosecute to finality those charged with criminal activity.

Finally, as is clear from the judgment of Keane C.J. in P.M., anxiety and concern may take many forms and these may include "stigmatisation of the accused, loss of privacy, … disruption of family, social life and work, legal costs, uncertainty as to the future." See p. 573 of the report. Whilst these comments of the Chief Justice were made in the context of pre-charge delay, it seems to me that there is no reason why the same should not, in principle, equally apply to post-charge delay.

75. As can therefore be seen it would appear from the judgment of the court in P.M., that where a violation of a person's right to a trial with reasonable expedition has been established, but where the evidence falls short of also establishing a violation of Article 38.1 of the Constitution, then the court must make a judgment between vindicating the rights of the accused person by prohibiting the trial and upholding the continued prosecution of such a person in the common good. In conducting this exercise a court must of course consider all of the relevant circumstances including the nature of the offence, the extent of the delay and, where present, any unnecessary stress and anxiety caused to an applicant.
76. Finally, could I also refer to the judgment of Hardiman J. in J O'C v. D.P.P. [2000] 3 I.R. 478, where on the issue of delay he considered several cases on both the civil and criminal side. He also dealt with the reasons why delay can be so invidious and why a court when dealing with such cases must act with a high degree of vigilance.

In an earlier decision, the same judge, in D.P.P. v. F, Court of Criminal Appeal, Unreported, 2^nd December 1996, also said that he regarded the case before the court as "a chilling example of the effect even of a relatively short lapse of time on the memories of witnesses".

And lastly, a further passage from the judgment of Powell J., in Barker v. Wingo, supra, which is not quoted as extensively as the passage which appears at para 74 of this judgment, is also I think apt and worthy of recall. At p. 514 the learned Judge said " … the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown".

These general principles of law have been restated very frequently in many judgments of both our domestic courts and of courts of foreign jurisdictions. It is their application to the particular facts of any given case that causes difficulty. It is this to which I now turn to in the instant circumstances.

77. Could I first revert back to the period between the making of the complaint and the service of the summons on the accused person. The first date is 14^th July, 1995, with the other being the 26^th September, 1996. During this period, as is evident from the affidavit of Superintendent Brennan and in particular from paragraphs 7 to 11 thereof, the following events occurred. On 28^th November, 1995, Sergeant Brosnan, who was co-ordinating the prosecution sent his file to Superintendent Brennan. On 7^th December, the Superintendent forwarded that file to the state solicitor in Cork. On 22^nd January, 1996, the same was sent to the D.P.P., who responded on 29^th May, 1996. In his said letter, the D.P.P. sought additional information. That request was passed to the Gardaí on 4^th June and on 5^th July, Sergeant Brosnan returned the file to the Superintendent having complied with the D.P.P.'s request. Some three days later the Superintendent returned the file to the state solicitor and on 26^th September, the summons issued.

In my view, I don't believe that the applicant can legitimately complain about delay in the above time frame. That is apart from the four month period in which it took the D.P.P. to respond. Why this was necessary has not been fully explained. However, given the fact that the file in question was a combination of a joint investigation, I am prepared to hold, on balance, that this period, whilst borderline, was not so excessive as to constitute, in the circumstances, inordinate or excessive delay. I, therefore, do not believe that this period can be usefully relied upon by the accused person to further his complaint on ground No. 3.

78. Following the commencement of the judicial review proceedings, however, the time periods in question and the reason, or reasons, therefor are entirely different from those involved in the period just mentioned. The first period complained of runs from 10^th of March, 1997, when the statement of opposition should have been filed, to 18^th of June, 1997, when in, fact, it was filed. This time span covers about 13 weeks and involved four extensions of time as well as an unsuccessful application made to Morris P. to limit the scope of the leave order. The second period in question begins on 7^th July, 1997, when the court made a general order for discovery against the D.P.P. allowing him one week to file his affidavit of documents, and ends on 4^th December of that year, when, in fact, the discovery affidavit was sworn by Superintendent Brennan. This constitutes almost five months. The third period starts on 27^th January and runs to 28^th July, 1998. As appears from the recital of events given at para 65 above, the applicant issued a notice of motion on 27^th January complaining about certain aspects of the D.P.P.'s discovery. There was, it must be said, no delay by the accused person in issuing this motion. The matter then went into the Judge's List, but was not reached on 9^th March or 23^rd March. It was therefore adjourned to the list to fix dates. An application for priority made on behalf of the applicant was unsuccessful. It was heard on 2^nd July and the order was perfected on 3^rd July. As the material part of that order is set out at para 65 of this judgment it is only necessary to recall that "a corrective affidavit" had to be sworn by the Superintendent on behalf of the D.P.P. This was done on 17^th July. On the 28^th of that month, having read the documents in respect of which privilege was claimed, Geoghegan J. directed the D.P.P. to disclose to the applicant a document listed at No. 20 in the second part of the first schedule to the Superintendent's said affidavit of discovery.
79. In respect of the above mentioned dates and indeed others, which I will also refer to, the question arises as to whether the periods in question constitute inordinate or unreasonable delay, either individually or collectively and if so, which party or parties should bear the legal responsibility therefor. This type of inquiry is, in my view, essential as one cannot simply ignore the judicial review proceedings or the various steps taken as part thereof.

The 13 weeks within which it took the D.P.P. to file a statement of opposition is a long period of time, but on balance is possibly not excessive. I accept that the standard period of three weeks is not sufficient to gather the required documentation, to submit the same to counsel, to receive back from him draft papers and then to have the same sworn by the deponent of the replying affidavit. These documents must also be served. So whilst on paper a period of over three months might appear excessive, I don't in fact believe that in the circumstances it should be so described.

However, I cannot see any possible justification for the five month period delay in swearing the affidavit of discovery. Though the investigation involved two persons and the resulting file was a combined one, from an investigate point of view one could not describe the underlying circumstances as extremely difficult or extraordinary complex. It must be remembered that the Garda documentation was completed not later than 28^th November, 1995, when the co-ordinating Sergeant transferred the same to Superintendent Brennan. Apart, therefore, from the D.P.P.'s instructions given in May ,1996 and the application for, and the obtaining of, the summons, nothing further required to be done to complete the file. I therefore fail to see why it took five months to make discovery, when the entire documentation was long since in existence and was readily available. I therefore believe that this period was excessive and unreasonable.

80. The third time frame above mentioned was taken up with the applicant's complaint in the High Court that the affidavit of documents was defective. As we know, two orders of the High Court were made on these complaints. The first was perfected on 3^rd July, 1998 and required, as previously stated, a corrective affidavit of discovery and the second was perfected on 28^th July, 1998, which in respect of a single document rejected the first named respondent's claim for privilege. On behalf of the D.P.P., it is claimed that any success resulting to the applicant arising out of these orders was purely of a technical nature with no substantive benefit accruing to him. It was said with regard to the first order that at all stages the D.P.P. was happy to correct certain admitted errors in the original affidavit and, secondly, was also happy to specify with certainty that prior to swearing the affidavit the Superintendent had checked with the Director of Public Prosecutions about any documents in the possession, power or procurement of the latter. Finally, Mr. McDonagh, S.C., also claims that in relation to the second order, the single document referred to was in effect of no value to the applicant in these judicial review proceedings.
81. I have considerable sympathy for the D.P.P. with these arguments. However, it could not be said that the applicant was unsuccessful in his challenge to the discovery process. It should be noted that the omissions in the affidavit, conceded to by the D.P.P., were not remedied prior to July. In addition, it is important, in my view, to also bear in mind that a third point was raised in the High Court, which is dealt with in the judgment of the learned trial judge. Geoghegan J. said "it is important that the D.P.P. should be personally responsible for raising the plea of public interest immunity". Accordingly, he directed the Superintendent, in his corrective affidavit, to make clear "that the pleas of privilege and public interest immunity were made on behalf of and on instructions of the Director of Public Prosecutions". This point, though technical, is nonetheless of some significance. Furthermore, although the relief was confined to a single document, I cannot agree that Geoghegan J, having carefully considered the matter over a three week period, would have ordered the production of this document if it was so devoid of application as is suggested on behalf of the D.P.P. Therefore I can only conclude from the orders so made that the applicant was justified in pursuing his complaint about the original affidavit of discovery, no matter how technical or limited his success was. As a result, it is quite clear that Mr. T.H. cannot be held responsible for this period and whilst there is no obvious delay on the part of the D.P.P. in filing documents, or otherwise appearing in court, nonetheless, the process took over six months, which would not have been lost but for the legally unjustified stance taken by the D.P.P. Therefore this time span, certainly up to the 17^th July, must, I feel, be declared the D.P.P.'s responsibility.
82. A notice of appeal dated 15^th July, 1998 issued on behalf of the applicant in respect of the said order of 3^rd July and a further notice of appeal dated 17^th August, 1998 issued against the later order of 28^th July 1998. The steps which were subsequently taken and which led to the Supreme Court hearing both appeals on 5^th and 6^th December 2000 are fully set forth at para 65 of this judgment and so the same won't be repeated here. This led to the order of the 30^th January, 2001. Notwithstanding this order, it is argued on behalf of the D.P.P. that this entire appeal process was unwarranted and unjustified, with confirmation of this being evident from the applicant's ultimate decision to confine, before the Supreme Court, the scope of his relief to a single document.
83. Though, once again, I have a feeling for this view as presented on behalf of the D.P.P., I cannot, however, agree that such appeals were frivolous or vexatious or otherwise amounted to an abuse of process. I cannot but believe that if this interpretation was justifiably open on the relevant legal principles, then the Supreme Court would have so concluded and certainly would not, under any circumstances, have awarded to the applicant his costs of the said appeal. By so holding with the first named respondent on this submission, it seems to me that, in effect, I would be reversing the judgment and order of the Supreme Court or at a minimum casting serious doubts on its correctness. This of course I cannot do. Accordingly, if this period of time, namely from July, 1998 to December, 2000, is a period which I should take into account in the calculation of the overall delay, I would have to conclude that Mr. T.H. is blameless in this regard and that this time frame would not have been incurred but for the incorrect legal position adopted by the D.P.P.
84. Following upon its judgment, the Supreme Court, by order dated 30^th January, 2001, directed the first named respondent to produce for inspection "in accordance with the judgment of the court" the letter dated the 29^th May, 1996, which had been sent to the state solicitor in Cork. That judgment, which is reported at [2001] 1 IR 378, records the fact that the scope of the appeal was dramatically narrowed by Mr. T.H., confining his application to a single additional document, and by the D.P.P., conceding the "relevance" of that document on the basis of its inclusion in the affidavit of discovery. Having set out the various submissions made on behalf of the parties and having addressed the immediate issue at hand, Hardiman J., in giving the judgment of the court, at p. 384 said "this being so, it seems just and equitable that the first respondent having deployed the letter for this purpose, the appellant should be entitled to have access to it to see whether, indeed, it supports the proposition in support of which his opponent has deployed it.

I would allow the appeal and order the production for inspection of the communication …. "

As appears from both the order and judgment there are no qualifications or conditions attached to the direction compelling the production of the said document.

85. On 8^th May, 2001, a copy of this letter in redacted form was sent to Mr. O'Sullivan solicitor. He immediately replied by refusing to accept the same. On 5^th July, the D.P.P. insisted that such redacted copy was in full compliance with the Supreme Court order. Again, on 11^th July, that contention was rejected by Mr. O'Sullivan. On 14^th February, 2002, the first named respondent issued a notice of motion seeking to have the case listed for trial on the basis that the same was ready for hearing. This was vigorously disputed on behalf of the applicant. The High Court, on 11^th March, indicated that a motion seeking clarification should be taken to the Supreme Court. That was done on 21^st March. On 31^st July, the Supreme Court directed that submissions should be filed firstly by 9^th September, 2002 on behalf of the D.P.P. and thereafter by the respondent. In fact, the former submissions were not served until 7^th October. Ultimately, on 21^st October, the notice of motion was dismissed, with the Supreme Court refusing to issue any variation or alteration to its original order. On 20^th November, a full unedited copy of the said letter dated 29^th May, 1996 was ultimately produced.
86. This last period of almost two years constitutes, in my view, an inordinate length of time in respect of which no acceptable justification has been offered. As previously stated, there is nothing in the Supreme Court's order or its judgment, which would in anyway ground a belief that the letter of 29^th May, 1996 could be edited before being produced to the applicant. There is, in my view no basis for so interpreting either the said judgment or order. Consequently, I am of the opinion that this entire period must be attributable solely to the first named respondent. Though the range of documents which the applicant originally sought in the High Court was, as Hardiman J. said, dramatically reduced at a later stage, this was evidently known prior to the commencement of this period. It is, therefore, not of importance for this period. Accordingly, I cannot see how there is any scope for attaching to the applicant any blame for this lost time and, therefore, I firmly believe, that the responsibility therefor is entirely that of the first named respondent.
87. The position, therefore, is that, in my view, there are three periods that with certainty this court can take into account and in respect of which, the first named respondent bears full responsibility. These are the five month delay in filing the original affidavit of documents, the six month period before the corrective affidavit was sworn and, thirdly, the period between January, 2001 and November, 2002.

Taking these three periods only and without having recourse to any other time span it appears to me that, in the circumstances of this case the same amount to an unreasonable and inordinate delay, for which the D.P.P. must bear full responsibility. The total time span is about two years and nine months. The applicant cannot be held to be blameworthy for any portion of this time. It must be recalled that the underlying circumstances could not be described as unduly complex or technical. It must also be recalled that the investigation was complete as of November, 1995, a period of almost seven years prior to November, 2002, that the summons was served in September, 1996 a period of more than six years prior to the said November, 2002 and that, as of the latter date, the applicant was part of the criminal justice process for a period of six or seven years. It seems to me that given the length of time during which the discovery issue travelled in both the High Court and the Supreme Court and the five months for the swearing of the original Affidavit the D.P.P. should have been ever conscious of the issue of time and delay and should have been acutely aware of his responsibility not to cause any further lapse of time. This, unfortunately, did not happen and in particular the final period of 22 months was, in my view, entirely avoidable. In these circumstances, and having considered the overall facts of this case, I would have no hesitation in coming to the conclusion that the periods above mentioned and, in particular, the said period of 22 months, constitute, in my view, a breach of the applicant's right to a trial with reasonable expedition. As a result, in order to protect and vindicate this positive constitutional right, I would grant in his favour an injunction prohibiting the D.P.P. from the further prosecution of the applicant on the charge against him.

88. In addition, I believe that a strong argument can be made for including in the calculated periods, the time from July, 1998 to December, 2000, during which the appeal process, on the issue of discovery, was in place. I say this because, as previously stated, it can, I think, be reasonably stated that the appeals were justified, given the final order of the Supreme Court, and in particular the awarding by it to the applicant of his costs. That would never have occurred if the Supreme Court acceded to the submissions on behalf of the D.P.P. If, for example, the final conclusion of either the High Court or the Supreme Court had been to the contrary, then the applicant could not avail of the time it took to deal with these matters in any calculation of delay against the D.P.P. I, therefore, would be of the opinion that this time period from July, 1998 to December, 2000 is capable of inclusion in the overall period for the court's consideration. If I should be correct in this, then given the views which I have already expressed, it would evidently follow that an injunction would also issue.
89. In the above period the question of anxiety and distress, caused to the applicant, looms large. In the circumstances as outlined, I think it is reasonable to infer that he was subjected to a far greater degree of anxiety and concern than he should have been, if his constitutional right had not been violated. In addition to any such inference, however, there is also an express averment at para 8 of his affidavit sworn on 21^st November, 2002 (see para 71 above), wherein he sets out the oppressive nature of the time involved in this case. This said paragraph has not been controverted. I, therefore, believe that if a trial had been held in accordance with his constitutional right, then this level of stress and anxiety would not have been caused to him. Therefore it follows for the reasons above stated that one of the essential purposes for the existence of this constitutional right has not been protected in the case of the applicant.
90. If, having so found, as I have it becomes necessary to embark upon the balancing of the applicant's right on the one hand for an injunction and the vindication of the public's right to further prosecute this offence on the other hand, I would hold that having considered all of the circumstances, including the date of the alleged offence, the nature of the charge, the time period between the first complaint and the issue of the summons and the other matters above identified, it would be unfair and unjust to permit this prosecution to further continue. I, therefore, would favour the applicant's constitutional right over that of the public and would prohibit the further prosecution of this offence.
91. Finally I would like to make some observations on the question of a fair trial. As is common case there is a single charge of sexual assault against the applicant. This is alleged to have occurred on 23^rd June, 1995. Though an identification parade took place on 7^th October, 1996 that matter is not in my view in anyway conclusive on the question of guilt or innocence. There remains a considerable body of further evidence which will have to be explored. Some of these matters are as follows:-

(a) In the initial statement of complaint to the Gardaí the complainant refers to several acts of sexual abuse allegedly committed by A.B. and in the process refers to a third party, whom he identified by a particular name but who otherwise was unknown to him. The victim also says in that statement that he had two litres of cider that night,

(b) In a statement made to the Gardaí by the complainant's sister, she recalls that the said complainant was very drunk on the night in question, that he could not stand up and was getting repeatedly sick. She claims that he informed her he got drink and thereafter got hash,

(c) In a statement by the complainant's mother to the Gardaí she states that on the day following she asked her son about the previous night but in response he said he couldn't recall anything,

(d) In an interview with the Area Medical Officer on 1^st August, 1995 the victim repeated the allegation against the third party, then identified by a particular name, but did so in terms different from other occasions upon which the allegation was also repeated.

These are but instances of where further exploration of the evidence will be necessary. There are many other such examples. Bearing in mind what Hardiman J., said in D.P.P. v. F., supra, I have a real concern given the circumstances surrounding this alleged sexual assault and the lapse of several years since its alleged occurrence that in any trial the memory of the most critical witnesses will be distorted forcing them to fall back on and refer to statements. This would be most unsatisfactory. I therefore also therefore believe that if this trial should proceed there is a real risk of the accused person not obtaining a trial in due course of law.

92. Accordingly for the reasons herein stated I will grant the injunction as sought.