High Court of Ireland Decisions

Neutral Citation No: [2007] IEHC 94

THE HIGH COURT

JUDICIAL REVIEW

[2006 No. 757 JR]

BETWEEN

RONALD MURPHY

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

EX- TEMPORE JUDGMENT of Mr. Justice O'Neill delivered on the 19th day of February, 2007

In this case the applicant seeks by way of judicial review an injunction restraining the respondent from taking any further steps in the prosecution of the applicant for offences contrary to s. 4 and 17 of the Criminal Justice Theft and Fraud Offences Act, 2001 as set out on Kevin Street Charge Sheets numbers 312795 and 312796 which were listed for hearing before District Court Number 50 at the Richmond Hospital Dublin Metropolitan District on the 27^th July, 2006.

The history of this matter would appear to be as follows:

The alleged theft which was the basis of the charges occurred in March of 2003. In August of 2003 following investigation, the applicant in this case was purportedly identified following a Crimeline programme from video footage taken from a CCTV camera.

In due course on the 26^th August, 2003 the applicant had been apprehended, was arrested under s. 4 of the Criminal Justice Act, 1984 and was interviewed and released without charge. Sometime went by and the applicant was eventually charged on 29^th September, 2004 that is to say approximately 1 year and 1 month later. The delay in so charging the applicant is explained by Garda Moran in his affidavit sworn in these proceedings on the 27^th November, 2006 at paragraphs 4 and 5 and specifically at paragraph 5 where he says:

"Upon his release from custody the applicant gave me a mobile telephone number for future contact but when I endeavoured to contact him on this number following the receipt of directions in relation to the matter I was unable to do so. Again, I left messages with family members requesting that the applicant contact me but he failed to do so. I believe the applicant left the country for a number of months at this time and I was only able to make contact with him despite my repeated efforts in early September, 2004."

And he goes on to say that because of this the applicant contributed to in no small part to the delay in charging.

These averments are not challenged on affidavit or denied and in my view they do offer a reasonable explanation of that period of delay from the end of August 2003 until the end of September, 2004 in the charging of the applicant. In my view there was not culpable delay on the part of the respondent as the prosecuting authority in respect of that loss of time.

The applicant was at that point (that is to say at the end of September, 2004) brought before the District Court and a date was fixed for his trial the following April, that is to say April of 2005 and it was to take place in Kilmainham. In the meantime there was correspondence between the applicant's solicitors and the respondents in respect of a variety of matters. However, that correspondence does not appear to have in any way contributed to the delay having regard to the fact that the trial was fixed for April, 2005.

Then a problem emerged when Garda Moran became aware in advance of the trial that Kilmainham District Court was not suitable for the hearing of video evidence. He learnt of this a short period before the trial date and as a consequence of this the 15^th April trial date could not go ahead and the case had to be adjourned and it was eventually set down for hearing on the 5^th December, 2005 in the District Court sitting in the Richmond.

I would accept that the delay for this period that is to say from 15^th April to 5^th December 2005 was the responsibility of the State. They should have known that Kilmainham was not suitable and should have arranged for an appropriate venue, so I would fault the State for the delay during those months.

Then when the matter came on for hearing on the 5^th December, 2005 the applicant's legal team turned up but the applicant did not and it emerged at that stage that the reason for his non attendance was that he was serving a sentence or an unrelated matter and was in prison. In that regard the applicant submits that this was entirely the fault of the State who had the duty of making sure that the applicant was brought to Court on the 5^th December. I do not entirely share that view. It would seem to me that in approaching this hearing it is quite extraordinary that the legal advisors to the applicant were not more alert to his incarcerated condition and indeed it is quite surprising that they got to court without knowing that we he was not going to turn up due to the fact that he was in jail and I would take the view that it would be wholly unrealistic to entirely blame the State for the delay occasioned by this mishap and in my view it was a shared responsibility and of course it is the case that had the solicitors for the applicant been aware of the fact that he was in jail he could have ensured he was brought to court by applying for a production order as is done on very frequent basis. None of that was done and that period was lost. So the upshot of all that was then that the case was adjourned to the following June that is to say the 27^th June, 2006 the day before the case was due to come on for hearing, application was made to this court for leave to apply for judicial review and the grounds upon which that judicial review and the injunctive relief are sought are that there has been inordinate and inexcusable delay. The applicant does not point to specific prejudice but he does rely upon a variety of authorities including the authority of the case of Arthurs v. The DPP to submit that his right to an expeditious trial under Article 38 of the Constitution has been breached and that notwithstanding the absence of specific prejudice that that breach is of such a significant nature that the unusual step of either an order of prohibition or an injunction to restrain further prosecution is warranted.

Cases where there is to be summary disposal are to be in my view treated in a somewhat different fashion to cases which are to be dealt with on indictment and I think that is well settled as a result of a variety of authorities going back several years at this stage and the reasons for that are apparent. There is no point having a summary jurisdiction unless cases are dealt with quickly; the fundamental idea being that the matters which are being dealt with in that way are minor matters, the penalties which are to be suffered would be at the lesser end of the penalty range and it is inappropriate that these penalties will be applied several years after the event when the life of the miscreant so to speak has moved on and may indeed the miscreant may well have mended his ways insofar as they may have needed mending and therefore having to endure even minor penalties or short periods in jail may have a wholly disproportionate disruptive effect at an entirely inappropriate stage in life. Hence the need for summary proceedings to take place quickly within the sort of timeframe that was envisaged for them namely within 2 to 3 years or so at the outside

There will of course be cases where that will not work out and in my view this is one of these cases and as is apparent from my description of an a analysis of the delays that have occurred in this case, that there were a variety of factors that were to blame for these various delays. Of the periods of delay in question only one period that is to say the period from 15^th April, 2005 to 5^th December, 2005 can be unequivocally blamed on the State. Insofar as the rest of the delay is concerned either the applicant was largely responsible or was at the very least equally to blame and that would be for the later period from December, 2005 until June, 2006 is concerned.

In my view the applicant has not in this case demonstrated the kind of unequivocal and serious …. breach of his constitutional right to an expeditious trial, contrary to Art. 38.1 of the Constitution that would warrant, restraining any further prosecution of these charges.

Approved: O'Neill J.