High Court of Ireland Decisions

Judgment Title: McFarlane v Director of Public Prosecutions

Neutral Citation: [2006] IEHC 389


High Court Record Number: 2006 542JR

Date of Delivery: 08 November 2006

Court: High Court

In consequence the applicant issued a Notice of Motion returnable before the Master of the High Court on 13th October, 2000, seeking discovery of the documents sought. After adjournments by consent of the parties on two occasions and a further mutual misunderstanding between the parties the motion before the Master was struck out on the 12th January, 2001, for non- appearance. A fresh motion was issued on 2nd October, 2001, returnable before the Master on 16th November, 2001.
On that date and thereafter the matter was adjourned on successive occasions until 8th February, 2002, when an Affidavit of Discovery was delivered on behalf of the D.P.P.

The Court made an order which restrained the trial of the applicant in respect of the charges preferred against him on the grounds that the failure by the prosecuting authorities to preserve certain evidence inhibited the ability of the applicant to defend the charges preferred against him. The Court refused to grant relief on the grounds of delay.

In a dissenting judgment Kearns J. upheld the findings of the learned High Court judge and dismissed both appeals.

Additionally the applicant has had to attend at the Special Criminal Court on more than 40 occasions since1998. Mr. MacGuill also averred that in order to attend at these hearings the applicant is required to make a round trip from his home in Belfast to Dublin which is an overall distance of some 320 kilometres.
Mr. MacGuill also averred that the applicant has been under considerable pressure during the period of more than eight years which have elapsed since he was first charged with these serious criminal offences.
He married on 31st May, 2001. He has three children ranging in age from seven years to three years. His youngest daughter has special needs and his elderly mother is dependent upon him.
THE ISSUES
On behalf of the applicant Mr. Gageby S.C. contends that this application to prohibit the applicant’s trial is to be distinguished from the earlier application made on his behalf for the same relief.
He says that the applicant’s constitutional right to a trial with reasonable expedition has been violated by reason of delays inherent in the court process within this jurisdiction. He argues that the right conferred upon the applicant by Article 6 (1) of the European Convention on Human Rights to a hearing within a reasonable time has also been violated by the delay.
He says that this application for relief on grounds of delay differs from the application made in the earlier proceedings for relief on grounds of delay. He contends that the earlier application was concerned solely with the question of delay on the part of the prosecuting authorities in bringing the applicant before the courts.
He says that the applicant is now entitled to relief by reason of the combination of delay on the part of the prosecution authorities in bringing the applicant before the court and delay within the court process itself. He categorises the overall delay as “culpable” or “blameworthy” delay. He says that it has subjected the applicant to presumptive prejudice and to physical and emotional hardship, distress and inconvenience so grave that it is sufficient to require that his trial in respect of the alleged offences should be prohibited.
He has specifically identified the delay as follows;

Mr. Gageby S.C also argues that the identified delay on the part of the prosecuting authorities and the State’s court process has contributed to an unacceptable overall delay in the prosecution of the applicant which is compounded by the earlier 15 year period which elapsed between the date of the commission of the offences and the date of arrest. He points to the State’s duty to act with particular expedition in such circumstances.
The arguments of Mr. Collins S.C, on behalf of the D.P.P can be summarised as follows:

DECISION
In this case the applicant was charged with the relevant offences in early 1998. A Book of Evidence was served upon him on the 14th July, 1998. He was professionally represented and participated within the criminal process. His criminal trial was fixed for the 9th November, 1999.
Eight days before his trial was due to commence the applicant applied for leave to seek relief by way of judicial review including an order prohibiting his trial.
The applicant was entirely within his legal and constitutional rights to seek the relief which he sought. He also sought and was granted an order restraining his trial in respect of the criminal charges preferred against him pending the outcome of his judicial review application. That order which was made upon his application remained in force until the 7th March, 2006, when his judicial review application was finally determined.
On the 15th May, 2006, (two months later), he sought and was granted a further order restraining his trial in respect of the same charges pending the outcome of these proceedings.
It is undeniable that the applicant was not brought to trial in respect of the relevant offences on the 9th November, 1999, and has not been brought to trial since because he has been successful in preventing his trial from proceeding.
The Supreme Court has held that the applicant’s constitutional right to a trial with reasonable expedition has not been violated by reason of any delay on the part of the State in prosecuting the applicant up to and including the 1st November 1999.
The applicant now says that his trial should not proceed because the DPP and the courts did not deal with his judicial review application with sufficient expedition.
The fundamental question now to be determined by this court can be summarised in the following simple terms:
(a) Has there been unnecessary delay on the part of the prosecuting authorities and within the courts process of the State between 1st November, 1999, and 7th March, 2006, in dealing with the applicant’s judicial review proceedings;
(b) If so was the delay of such a character, and its impact upon the prosecution of the applicant of such gravity and significance that his trial in respect of those offences should be permanently prohibited;
(c) Is the applicant estopped, in any event from seeking the relief which he seeks and,
(d) Should the applicant’s claim be dismissed as an abuse of process.

1. The 13 month period between the 12th January, 2001, and the 8th February, 2002.
Conflicting evidence has been adduced as to why 13 months elapsed between the date when the applicant’s Motion for Discovery was struck out and the date when an Affidavit of Discovery was delivered on behalf of the D.P.P. That period of time was excessive in the circumstances .Culpability for that delay can be attributed to both parties.
2. The period of 4 months between the 14th March, 2003, (when the applicant’s judicial appeal proceedings were listed to be heard in the High Court), and the 11th July, 2003, (when the proceedings were heard).
No judge was available to hear the case on the 14th March, 2003, by reason of inadequate judicial resources within the courts on that date. The case was, accordingly, adjourned for 4 months to accommodate a full hearing. No particular evidence has been adduced which would suggest that an adjournment of such duration was unreasonable or unnecessary in the circumstances.
3. The period of approximately 18 months between the 19th August, 2003, (when an appeal was lodged on behalf of the D.P.P. in the Supreme Court), and the 27th January, 2005, (when the D.P.P. certified the case as ready to proceed).
Whilst a certain amount of time would have been necessary for the prosecuting authorities to adequately prepare for the appeal, a period of 18 months was excessive in the circumstances and no adequate explanation has been provided by way of evidence on behalf of the D.P.P which explains the delay. Accordingly I am satisfied that the appeal on behalf of the D.P.P. ought to have been processed more speedily than was the case and that the appeal was unnecessarily delayed on that account.
4. The period of 14 months between the 27th January, 2005, (when the appeal to the Supreme Court was certified by the D.P.P. as ready to proceed), and the 7th March, 2006, (when the Supreme Court delivered its judgment).
It is contended that this period of time comprised an unnecessary delay on the part of the State’s court process in dealing with the applicant’s judicial review proceedings.
No evidence has been adduced in these proceedings indicating that a 14 month waiting period for an appeal hearing is necessarily excessive in this or other jurisdictions. It is contended that on behalf of the applicant that there was a duty upon the D.P.P. to apply to the Supreme Court to have the appeal heard as a matter of urgency in the circumstances. It is not without significance that no application was made on behalf of the applicant to the Supreme Court or to the DPP for such priority.

In T.H. v. D.P.P. and His Honour Judge Smithwick, (Unreported, 25th July, 2006), the Supreme Court, (Fennelly J.), considered, on similar grounds of delay, an application for the prohibition of the trial of an applicant charged with a sexual assault. The applicant had commenced judicial review proceedings in 1997 which were not finally determined until March, 2004.
The High Court (McKechnie J.) prohibited the trial on the grounds that there had been “blameworthy” delay on the part of the State during the 7 year period between the commencement and conclusion of the applicant’s judicial review proceedings which comprised a violation of the applicant’s constitutional right to a trial with reasonable expedition and subjected him to the risk of an unfair trial.
The D.P.P. appealed, claiming that the delay had in fact been caused by unmeritorious judicial review proceedings taken by the applicant and the way in which the applicant had conducted them.
The Supreme Court, (Fennelly J.) agreed that the judicial review proceedings were without merit noting that:

“Where, as here, the violation of the right has not jeopardised the right to a fair trial, but has caused unnecessary stress and anxiety to the applicant, the court must engage in a balancing process. On one side of the scales, there is the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay. On the other side, is there the public interest in the prosecution and conviction of those guilty of criminal offences. In all such cases, the court will necessarily be concerned with the nature of the offence and the extent of the delay.”

“I believe that the balancing exercise referred to by Keane C.J. in P. M. v. Malone is the appropriate mechanism to be adopted by a court in determining whether blameworthy prosecutorial delay should result in an order of prohibition.
It means that an applicant for such relief must put something more into the balance where prosecutorial delay arises to outweigh the public interest in having serious charges proceed to trial. In most cases, pre-trial incarceration will not be an element as an applicant will probably have obtained bail pending his trial. Secondly, while he may assert increased levels of stress and anxiety arising from prosecutorial delay, any balancing exercise will have to be taken into account the length of such blameworthy delay, because if it is a short delay rather than one of years the mere fact that some blameworthy delay took place should not of itself justify the prohibition of a trial……in conclusion, however, on this issue, I am satisfied that where blameworthy prosecutorial delay of significance has been established by the applicant, then that is not sufficient per se to prohibit the trial, but that one or more of the interests protected by the right to an expeditious trial must also be shown to have been so interfered with such as would entitle the applicant to relief.”